A7 I Cornell University f 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/cu31924020121178 "l»KS,&y selected t REMEDIES BY SELECTED CASES ANNOTATED SAMUEL F. ^IPRDECAI DEAN OF LAW SCHOOL, TRINITY COLLEGE (N. C), AUTHOR OF MORDECAI'S LAW LECTURES ATWELL C. MclNTOSH PROFESSOR OF LAW, TRINITY COLLEGE (N. C), AUTHOR: OF CASES ON THE LAW OF CONTRACTS DURHAM, N. C. 1910 ^n^/?^ Coi'VRIGHT, 1910 ]!Y SAMUEL F. ;M0RDECAI AXD ATWELL C'. McI^'TOSH STATE JOURNAL PRINTING COMPANY Printers and Stereotypers, madison. wis. TABLE OF CONTENTS CHAPTER I. Remedies Without Judiciai, Peoceedings. Sec. 1. Remedies by Operation of Law (1-9). (a) Remitter (1). (b) Retainer, Liens, etc. (2-8). Retainer by Administrator, etc. (2); Stoppage in Transitu (3); Liens (7). (c) Removal ot Trade Fixtures (8). Sec. 2. Remedies by Act of the Party (9-88). (a) Self-defense (9-50). Life and Limb of Self, Family or Servants (9) ; Retreating to the Wall (13); Defense of Wife, Husband, Master, Extent of Force (15); Defense of Person, Unnecessary Violence (16); Husband May Pre- serve his Honor (17-20); Defense of Liberty (20); Self-preserva- tion (23); Defense of Property, Spring Guns, etc. (25); Guard Dogs (31-34); Defense of Person and Property, Eviction from Hotels by Force (34); Trespasser in Public Road (38); "A Man's House is his Castle," Force that may be Used to Protect it (39); "Molliter Manus" (41-43); Defense of Property from Trespassing Animals (43); Dogs that Kill Sheep, Suck Eggs, etc. (45); Negligence, Force, Distress (48); Excessive Fbrce (49). (b) Recaption of Property (50-59). Retaking Chattels from Tort-feasor, what Force may be used (50); Resisting Recaption (52); Retaking Property from the Person by For.ce (53); Entering upon another's Land to Retake Chattels (55). (c) Entry (59-72). What Constitutes an Entry (59); Effect of Entry, Fieri non debet sed factum valet (60-62); Eviction by Force of Tenant by Sufferance (62-70); Ejection of a Servant by Force (70); Forcible Ejection from Church Pew (71). (d) Abatement of Nuisance (72-87). Abatement by Individual, Gate across Highway (72); Bridge across Navigable Stream (73, 75); Destroying Intoxicants, etc. (75) ; Turning out of Public Road when Impassable (77); Killing Dog (80); Abatement of Private Nui- sance (81-87); Entering on Another's Land to Abate (82); Pro- jecting Limbs and Roots of Trees (82); Obstructing and Diverting Surface Water (83). (e) Distress for Rent; Nature and Extent of the Remedy; What may be Taken (87). Sec. 3. By Agreement of Parties (88-95). (a) Accord and Satisfaction (88) ; Definition and Essentials of (88). (b) Arbitration and Award (90-95). Submission to Arbitration, Arbitration Bonds, Enforcing Awards (90); What may be Submitted to Arbitration (91); Agree- ment to Arbitrate; Insurance Clause (92); Arbitration and Refer- ence Distinguished, Duty of Arbitrators, Enforcing Award (94). CHAPTER II. Remedies by Judicial Proceedin'^gs. Sec. 1. Criminal and Civil Proceedings Distinguished (96-111). Crimi- nal and Civil Actions Explained, Bastardy (96); Peace Warrant, Civil or Criminal? (97); Contempt Proceedings, Civil or Criminal? (98, 100); Contempt Proceedings, Trial by Jury (102); Marking one Pros- ecutor and Taxing Him with Costs, Civil or Criminal? (103) ; Action IV TABLE OF CONTENTS. for a Penalty, Civil or Criminal? (106); Action for a Penalty Im- posed for an Offense to the Public, When the Informer may sue (107); Repeal of Statute Imposing the Penalty (109, 110). Sec. 2. When both Civil and Criminal Actions Lie, Merger (111-115). Indictment and Civil Action for the Same Offense (112); Merger of the Civil and the Criminal Action (113). Sec. 3. Change of Remedy by Statute, To What Extent the Legislature may Change the Remedy (115). CHAPTER III. Remedies Concekning Real Estate. Sec. 1. Writs of Entry, Assize, and Right (119-124). Writs of Entry and Assize Explained (119); Writ of Right Explained (121). Sec. 2. Ejectment Prior to the Code Practice (125-150). Forms in Eject- ment (125-130); Forms in Trespass for Mesne Profits (130-132); John Doe and Richard Roe, Lessor of Plaintiff, Legal Fictions (132); Rule as to Proving Defendant to be in Possession (133) ; By Co- tenant against Cotenant, General and Special Consent Rule (138) ; Title Involved, Legal or Equitable? (139); What Title Plaintiff must Prove (140); Rights of Landlords and Tenants and Third Persons to Defend the Action (143); What Defenses Permissible to Land- lords and Others Let in to Defend, Parties Let in by Consent Dis- tinguished from Those Let in by the Rules of Law, Old Practice and Code Practice (145); Title Involved (146); Mesne Profits and Dam- ages (147); Judgment How far an Estoppel at Common Law (148). Sec. 3. Ejectment under the Code Practice (151-176). Action to Re- cover Real Estate under the Code Practice, Estoppel by Judgment in such Cases (151); Transition from the Common Law to the Code Practice (156); Judgment how far an Estoppel under the Code Practice (157); Letting in Parties to Defend under the Code Practice (158); Equitable Defenses under the Code Practice (160); Tenant's Disputing Title of Landlord (161); Against Agent of the State (162); By and against Co-owners (163); For an Easement (166); For the Road-bed of a Railroad (167); Summary Proceedings in Ejectment (169, 170); Ejectment by Mortgagee against Mortgagor, Notice to Quit (172) ; Ejectment by Owner of Equitable Estate (173) ; Equitable Title as a Defense (174); Mesne Profits and Damages (175). Sec. 4. Betterments. Doctrine of Betterments Discussed (176). Sec. 5. Slander of Title (178-182). Essentials to the Action, Actual Damage (178); Actual Damage as the Result of Slander, Essentials to the Declaration (179); Malice (181). Sec. 6. Removal of Cloud upon Title, and Quieting Title (182-186). Jurisdiction in Equity and under Modern Statutes (182); What is such a Cloud as will confer Jurisdiction? (184). Sec. 7. Confusion of Boundaries and Processioning. Equity Jurisdic- tion over questions of Boundary (186-190); Processioning Lands, In- troductory (188); Practice under Processioning Act, Res Judicata (188). Sec. 8. Remedies Relating to Things Severed from the Realty (190-201) Fructus Industriales Produced by Disseizor (190); Trees Severed and Converted into a Boat or the like (192); House Removed from one Man's Land and Affixed to the Land of another (195, 197, 198)- House Removed to another's Land, but not Affixed (200); House Torn down arid Rebuilt on another's Land (200). Sec. 9. Waste (201-210). Waste in Law, Equitable Waste, Ancient and Modern Remedies (201); Estrepement (202); Ancient Action of Waste, Writ and Declaration, Strict Rules of Practice (203); Action of Waste and Modern Action of Trespass on the Case in the Nature TABLE OP CIJNTKNTS. V of Waste (204); Who can sue for Waste, Contingent Remaindermen, etc. (205); Remedies of Co-tenants against each other for Waste (206); Jurisdiction of Equity in Matters of Waste (207); Equitable Waste, Remedy in Equity (208); Mandatory Injunction (209). Sec. 10. Forcible Entry and Detainer (210-214). Unlawful Detainer (210); Forcible Detainer Distinguished from Forcible Entry and Detainer (210); Forcible Detainer by Tenant by Sufferance (212); What Constitutes a Forcible Detainer (213). Sec. 11. Nuisance (214-236). Nuisance Defined, Public and Private, Remedies at Law and in Equity (214); Public Nuisance, Informa- tion by Attorney General (218); Bill in Equity by Attorney General (219); Public Nuisance, Private Injury, Special Damage (220); Public or Mixed Nuisance, Private Injury, Special Damage, Liabil- ity of Landlord for Nuisance caused by Tenant (222); Jurisdiction and Practice in Equity in Cases of Private Nuisance (228); In- junction before Answer, Preliminary Mandatory Injunction, Prac- tice (230); Enforcing Obedience to Mandatory Injunction (232); Private Nuisance, Successive Actions for Damages (232, 233); When Successive Actions not Allowed (234). Sec. 12. Trespass Quare Clausum Pregit (236-258). What Constitutes a Trespass, Entry under Claim of Right (236); License from true Owner, Matter of Aggravation (237); Measure of Damage, Elements of Damage (238); Doctrine of Trespass ab initio (240); What Title will Support Trespass q. c. f. (242); Constructive Possession (243); What Constitutes such Possession as will sustain Trespass q. c. f. (244); What Possession will sustain Trespass q. c. f. against a mere Tort-Feasor and his Aiders, Abettors, etc. (245); By Lessees and Purchasers of Fructus Industriales and Naturales (246); By Owner of an Basement (246) ; By City or Town for Injury to Streets (247); By Owner of the Fee Covered by a Street (248); By a Town against an Invader of a Market-house owned by the Town in Fee (248) ; By Owner of Servient Estate against Owner of Easement (249); By Tenant against Landlord (250); By one Co-tenant against Another (250); By Lessee for Years, Remedy of Reversioner for Injury to Demised Land (252); Against Owner of Trespassing Animals (254); English and American Lav/ as to Cattle Roaming at Large (255); Judgment in Trespass q. c. f., how far an Estoppel (256); Trespass q. c. f. under the Code Practice, Title how put in Issue (257). Sec. 13. Action on the Case for Injury to Real Estate (258-261). Case in the Nature of Waste (258); Against the Owner of an Easement for Exceeding his Powers (259); Trespass on the Case and Tres- pass Vi et Armis for Injuries to Real Estate (260). Sec. 14. Remedy in Equity to Restrain Trespasses (261-266). Ir- reparable Injury, Establishing Right at Law (261, 262); Ordinary Trespass without Irreparable Injury (263, 264); Continued and Re- peated Trespasses, Trespasses by Wild Animals owned by a Hunting aub (265). Sec. 15. Remedy for Trespasses Committed in Exercise of Rights claimed under Eminent Domain (266-269). Remedy of one whose Land is taken under Eminent Domain (266); Injunction in Cases of Emi- nent Domain (268). Sec. 16. Remedy of Licensee who is Evicted; Exclusion and Ejection from Theatres, Market-stalls, etc. (270). Sec. 17. Remedies on Covenants for Title (271-285). Caveat Emptor (271); Actions on Covenants of Seizen, Right to Convey, and War- ranty (273); Covenants against incumbrances (275); Covenants of Quiet Enjoyment and Seizin, Measure of Damages (277); Covenants of Warranty and Quiet Enjoyment, Eviction (280); Form of Action on Covenant of Warranty (281); When the Heir and when the Per- sonal Representative of deceased Covenantee must sue for Breach of Covenant (282, 283); On Covenant of Further Assurance (283); Remedy in Equity on Covenants for Further Assurance (285). Sec. 18. Mortgagee's Remedies (285-296). Mortgagee's Remedies at Law Remedies — b. VI TABLE OF CONTENTS. f i and in Equity, Foreclosure, Parties (285); Parties to Foreclosure * Proceedings, Disposition of Surplus (287); The several Remedies of j Mortgagee, Cumulative Remedies, Ejectment, Rents and Profits » (288); Foreclosure when the Debt secured is payable in installments ( (290); Judgment in Foreclosure, Sale, Report, Confirmation, Mar- J ried Woman's Land Mortgaged to secure Husband's debt, Parties | (291); Foreclosure Sale, Raising the Bid (294); Mortgagee's Pur- } chasing at Foreclosure Sale (295). Sec, 19. Remedies of Mortgagor and his Assigns (296-300). Bill for Redemption, Form, etc. (296) ; Bill to have a Deed Absolute Declared to be a Mortgage and to Redeem (297); Bill to Redeem Property Purchased by Mortgagee at his own Sale (298). Sec. 20. Remedy for Breach of Contract to Purchase, Convey, or Devise Land (300-318). Contract to Purchase Land, Remedy of Vendor at Law, Damages (300, 302); Contract to Sell Land, Remedy of Vendee at Law, Damages (304, 305); Contract to Convey Land, Remedy of Vendee in Equity, Specific Performance (306); Oral Contract to Convey, Remedy in Equity, Part Performance, Betterments put on the land by the Vendee, Price paid by the Vendee (309); Oral Con- tract to Convey, Remedy of Purchaser, Betterments, Purchase Money (311); Contract to Convey, Specific Performance with Compensation for Defects (313); Contract to Convey, Rights to Rescind and Re- cover in Assumpsit, Compensation for Defects (313); Specific Per- formance of Award of Arbitrators (314); Specific Performance of Contract to Devise (315); Contract to Convey, Cumulative Remedies of Vendor (315-317). Sec. 21. Writ of Assistance, Remedy of Purchaser at Judicial Sale to Obtain Possession (318). CHAPTER IV. Forms of Action to Assert Rights Other than Those Concerning Real Estate. Sec. 1. Actions Ex Contractu and Ex Delicto Distinguished (320-338). Imprisonment for Debt and for Tort Distinguished (320); Various Definitions of Tort, Tort arising out of Contract (321); Waiving the Tort and Suing in Contract (324, 325); Waiving the Contract and Suing in Tort (326); Tort or Contract at Plaintiff's Election, Jurisdiction (328); Action of Tort for Breach of Contract (328); Forms of Action Ex Contractu and Ex Delicto under the Code Prac- tice, Declaration in Tort and Recovery in Contract (330); Tort for Breach of Duty to the Public arising ex contractu (331); Joinder of Tort and Contract in the same Action, Multifariousness (332); Tort growing out of Contract, Waiving Contract and Suing in Tort, Ap- plication to Infants' Contracts (333, 336). Sec. 2. Actions Ex Contractu (338-347). (a) Covenant, In what Cases the Action Lies (338). (b) Debt, in what Cases the Action Lies (339). (c) Account, When an Action of Account Lies (341); Bill for an Account, Account Render, Assumpsit at Law, Bill for an Ac- count in Equity (342). (d) Assumpsit, When Assumpsit Lies and the Origin of the Action (344); When Assumpsit does not lie (346). Sec. 3. Actions Ex Delicto (348-362). (a) Trespass vl et armis. When it lies (349). (b) Trespass on the Case (350); Broad Scope of the Action (350); Trespass vi et armis and Trespass on the Case dis- tinguished. Waiving the Trespass and bringing Case (351); Trespass on the Case for Breach of Duty, for Breach of Contract, Case and Assumpsit when Concurrent Remedies (353). (c) Trover (355). (d) Replevin (355-359) ;• History and Nature of Replevin (355); Common Law Action of Replevin, Essentials, Distinguished from Trover and Detinue (358). (e) Detinue (359-362); Nature of De- TABLE OF CONTENTS. Vll tiniie. Ancient and Modern Practice (359); Form of Judgment and Execution in Detinue (360); Detinue and Replevin Distinguished, Judgment and Execution in Detinue (361). Sec. 4. Forms of Action under the Code Practice (362-365). CHAPTER V. Injuries to Personal Security, to Personal Liberty, and to Privileges. Sec. 1. Remedies for the Death of a Person, Appeals of Death, Lord Campbell's Act (366-373). Appeals of Death, Weregild (366); Ac- tio personalis moritur cum persona. Lord Campbell's Act (369). Sec. 2. Preventive Remedies (374-380). Peace Warrant (374); Injunc- tion <375). Sec. 3. Threats, What Threats are Actionable (381). Sec. 4. Assault and Battery (382-394). What Acts amount to a direct Assault or Trespass (382); What Constitutes an Assault (383); What does not Constitute an Assault (384); Assault without Bat- tery or Special Damage (385); What amounts to an Assault, Assault without Physical Injury, Fright (385); Provocation as a Defense to an Action for an Assault (386, 388); Mutual Assault, Volenti non fit injuria as a Defense (389); Ceremonies in Secret Society (390); Volenti etc., in Seduction cases (390); What Constitutes a Battery (391); Measure of Damages in Actions for Personal Insult, Injury, and Fright (392). Sec. 5. Injuries to the Person Resulting from Negligence (394-405). When Trespass vi et armis and when Trespass on the Case lies (394) ; Remedy of Passenger injured by Negligence of Carrier (395); Negligence and Contributory Negligence Defined (397)j "Last Clear Chance" (399); Action for Fright caused by Negligence (401); Mental Anguish Doctrine (403). Sec. 6. Injuries to Health (406-413). Sickness of Individual caused by a Public Nuisance (406); Administering Croton Oil in Jest (407); Bad Provisions sold at a Public Function, Want of Privity (407); Liability of Wholesaler to Consumer for Dangerous Commodities. Want of Privity, Duty to Public (409); Letting House Infected with Smallpox (411); Malpractice (412). Sec. 7. Injuries to Reputation (413-439). Criminal Libel Defined, Jus- tification, Justifiable Purpose (413); Civil Action for Libel, Libel and Slander Distinguished (415); Slander of women by Imputations of Unchastity, when not Actionable per se (416); When Actionable per se (418); Words which are and are not Actionable per se (418); When Damages must, and need not, be shown (421); Privileged Communications, Absolute and Qualified Privilege, Malice (422); Privilege, Church Trials (425); Excommunication (426); "Freedom of the Press," Criticism of candidates (428) ; Mutual Libels, Re- taliation (430, 432); Province of the jury in Libel, Lord Erskine's victory, Distinction between criminal and civil proceedings for libel as regards the powers of judge and jury (434); Injunction against libel (438). Sec. 8. Deprivation of Liberty (439-485). (a) Habeas Corpus (439-456). History and Nature of the remedy. Practice in such proceedings (439); When Applicant is in Custody under Final Judgment of a rourt of competent jurisdiction (444) ; As a Substitute for a Writ of Error or an Appeal (446); What Detentions may, and what may not, be relieved by Habeas Corpus, Wives, Children, etc.. Physical and Moral Restraint (446); Power of United States Courts to discharge those in custody under the Laws and Judicial Proceedings of a State (450) ; Power of State Courts to discharge those in custody under the Laws and Judicial Proceedings of the United States (451) ; Duty of Judge in Habeas Corpus Proceedings, Rights of Prisoner on Re- fusal to discharge him. Appeal, Certiorari (453). (b) False Im- VIU TABLE OP CONTENTS. prisonment (456-461). What is, and what is not, an Imprisonment (456); When Trespass and when Case the remedy. Remedy under the Code Practice, Void and Erroneous Process (457); Distinguished from Malicious Prosecution (459); Process void for want of juris- diction (460). (c) Malicious Prosecution and Abuse of Legal Proc- ess (46x-479). Malicious Prosecution defined, what damages must be shown to support the action (461); Stirring up Vexatious Litiga- tion (462); Malice in Prosecuting one who is Guilty, What Malici- ous Prosecutions are Actionable, Probable cause (463) ; Distinguished from False Imprisonment, Does Trespass or Case Lie (464); What the Complaint should Contain (466); Essential Points, Effect of Judgment reversed on Appeal and Judgment of committing Mag- istrate as Probable Cause (466); Abuse of Legal Process (470); Malice and Probable Cause, Prosecutions for Wrongs affecting the Public distinguished from those for Private Benefit, Effect of Ac- quittal on Probable Cause (472); Abuse of Legal Process and Ma- licious Prosecution distinguished. Advice of Counsel (473); Law- ful Exercise of Legal Process with Malicious Motive and Ulterior Vindictive Object, Executing Lawful Process in an Offensive Man- ner (475); False Imprisonment, etc.. Measure of Damages (478). (d) Liability of Officers in actions for False Imprisonment, Malici- ous Prosecution, and Abuse of Process (479-485). Liability of Judi- cial Officers (479); Judicial and Ministerial OflScers and Duties dis- tinguished. Respective Liabilities of such Officers, Superior and In- ferior Courts, Jurisdiction (481); Acting under Void and Voidable Process (483). Sec. 9. Deprivation of Privileges (485-489). Unlawful Interference with Right to Vote (485, 487); Exemption of Election Officers from Civil Actions (488). CHAPTER VI. Injuries Growing Out of Relatbe Rights. Sec. 1. Husband and Wife (490-520). (a) Habeas Corpus (490-495). Right of Wife to Habeas Corpus when Restrained by her Husband (490, 491); Rights of Husband and of Wife in Habeas Corpus for the Custody of the Wife (491). (b) Seduction (495-500). Hus- band's Recovery for Seduction of Wife, Basis of the Action, Con- sortium (495); "Crim. Con.," Proof Requisite in (497); Wife's Right of Action for Seduction, etc., of her Husband (498). (e) En- ticing and Harboring (501-509). AVhat Is the proper Form of Ac- tion for Enticing and Harboring Wife (501); Alienation of Wife's Affections without Enticing her away or Seducing her (501); Har- boring Wife who leaves her Husband for Good Cause (503); Entic- ing and Harboring a Wife, who is a Minor, by her Parents, General Rules governing Enticing and Harboring in all cases (503); Entic- ing and Harboring, Acts of Strangers, and of Parents and other Rela- tives ( 504 ) ; When Wife can and cannot sue for Enticing her Hus- band from her, or Tortiously Inducing or Causing him to Abandon her (507). (d) Injuries to the Wife by her Husband and by Third Persons (509-520). Selling Deleterious Drugs to the Wife, Hus- band's right of action (509); Injuries to the Wife, Remedies of the Husband and Wife respectively (511); Injuries to the Person of the Wife by the Husband, Remedy of Wife (513); Remedy of Wife for Support (515); Wife's remedy for Mutilation of Husband's Corpse (517). Sec. 2. Parent and Child (520-549). (a) Habeas Corpus, Rules govern- ing Courts as to the Custody, etc., when Child brought before them on Habeas Corpus (520). (b) Enticing and Harboring Children (524-527). What constitutes Enticing, etc.. Remedy, Forms of Ac- tion, Gist of the Action (524); Abduction, History etc. of the remedy. Essentials to a Recovery (526). (c) Seduction (527-536). Form TABLE OF CONTENTS. IX of Action, Father's right to Recover, Basis of the Action, Figment of the Law, Basis of Damages, Adult and Minor Daughter (527); Ac- tion by one in loco parentis (530); Pull Review of the law of Seduc- tion, Who can Maintain an Action for. Necessary Allegations of the Complaint, Figment and quaint Fictions of the law, Services, Men- tal Anguish (531); Action by both the Father and the Child (535). (d) Death or Injury of Child by act of another. Right of Parents to recover (537-541). Death of Child through the Negligence of an- other (537); Injury to Child which causes Damage to Child only (538); Injury to Child causing Damage to both Parent and Child (539); When the Parent cannot recover (540). (e) Parent's right to the Earnings ofChild (541-549). Father's right to resover Child's Earnings (541); Mother's right to the Child's Earnings (542); When is the Parent Entitled to the Earnings and Services of an Adult Child? (544); Emancipation of Infants, Effect of on Parent's right to Earnings (546); Marriage, how far an Emancipation (547). Sec. 3. Master and Servant (549-598). (a)- Liability of Master to Serv- ant on Contract (549-557). Remedies of Servant for Breach of Con- tract of Hiring, Entire Contracts, Wages payable in Installments, Constructive Service, Duty of Dicharged Servant to Seek other Em- ployment, Estoppel by Judgment on one Installment (549); Entire Contracts, Remedy (555). (b) Master's Liability to Servant in ac- tions ex delicto (557-570). Fellow-Servant Doctrine, History, The Rule and its Limitations (557); Fellow-Servant Doctrine Criti- tised (560); "The Fellow-Servant Act" (564); Machinery, etc.. Master's Liability and Servant's Duty (567, 568). (c) Remedy of Master against Servant (570-577). Breach of Contract by Work- man, Common Law remedy of Master (570); Statutes making it a Crime for a servant to Break his Contract with the Master, Im- prisonment for Debt, Thirteenth and Fourteenth Amendments to the Constitution of the United States (572); Specific Performance of a Contract to Serve (575). (d) Master's right to Exoneration against the Servant, Liability of a Servant to a Master who has been Mulcted in Damages for Servant's Negligence (578). (e) Remedies of the Master and Servant against Third Persons (580-592). Remedy of the Master whose Servant is Disabled by the Tort of another. Menial Sei^ant (580); Remedy of Master whose Servant is Enticed to quit his service (582, 583); Master's Remedy by Injunction for Enticing Servant, Intimidating, etc. (586); Remedy of Servant against an Intermeddler who causes his Master to Discharge him (589). (f) Remedy of Third Person against a Master for the Acts and Neg- ligence of the Servant (592-^597). When Trespass vi et armis and when Trespass on the Case lies (592); Master's Liability for the Wilful Acts of his Servant (592); Master's Liability for the Wilful and Malicious Acts of his Servant (595). CHAPTER VII. Injuries to Tangible Personal Property. Sec. 1. Replevin, Detinue, and Allied Remedies (598-609). Who can maintain Replevin (598); Who can maintain Detinue (599); Effect of Judgment in Detinue and Trover upon Title to the subject-mat- ter (600); Detinue, Destruction of the Subject-matter by the act of God pendente lite. Detinue and Trover distinguished. When Optional with plaintiff to bring Detinue or Trover (601); Detinue and Claim and Delivery the same, General Practice, Form of Judgment, Dam- ages, Return of Subject-matter (603); Claim and Delivery under the Code Practice (605); Detinue and Claim and Delivery under the Code Practice (606); Remedy in Equity for the Recovery of Chat- tels (608). X TABLE 0F_ CONTENTS. Sec. 2. Trover (609-618). The Relief Afforded in Trover (609); Trover and Trespass distinguished, Who may maintain Trover, Title of plaintiff, Title in Third Person as a Defense (609); Proving the Conversion, When Trover and when Trespass on the Case lies for the Destruction etc. of Bailed Chattels (612); What amounts to a Conversion (613); Effect of Judgment in Trover on Title to the Sub- ject-matter, Gist of the action. Title that will sustain Trover (614); Measure of Damages in Trover, Return of Property (616); Waiving the Tort in Trover, Jurisdiction in Trover (617). Sec. 3. Trespass vi et armis and Trespass on the Case for Injuries to Personal Property (618-627). Trespass and Case distinguished (618, 619, 620); Case on Custom and Special Action on the Case against an Innkeeper (620); Trespass de bonis asportatls. Title and Possession that will sustain the action, Action by Reversioner (622, 623); When Trespass vi et armis de bonis asportatis lies against a Bailee, and when Trespass on the Case and Trover will He against a Bailee (624) ; Trespass vi et armis and Trespass on the Case for In- juries done by Animals (625); Slander and Libel of the Chattels of Another (626). CHAPTER VIII. Injuries to Rights Gkowing Out of Co.n'tract. Sec. 1. Action of Covenant (628-631). When Covenant lies (628); Covenant lies on a Sealed Instrument only. The Rule and the Ex- ceptions (629); Covenant and Debt, when Concurrent Remedies (630); Covenant against an Infant (631). Sec. 2. Action of Debt (632-648). Action of Debt explained. Collateral Agreements; Negotiable Instruments, Debt, Covenant, or Assumpsit when the Appropriate Remedy (632); What Amount can be recov- ered in Debt? (634); How to enter Judgment in Debt on a Penal Bond (635); When Debt and Covenant are Concurrent Remedies (637); Can the Recovery Exceed the Penalty in the Bond? (637); Debt for a Penalty given by Statute, What Amount can be recov- ered (640); Debt on Bond, payable In Installments, Joinder of Debt and Assumpsit in the same Action (642); Debt Preferable to Cove- nant or Assumpsit where the plaintiff has his Election to adopt either. Judgment by Default in Debt (644) ; Debt on Official Bond in which the State is Obligee, "State ex rel." (645); Summary Remedy on Official Bonds (646). Sec. 3. Action of Assumpsit (648-676). (a) There must be a Contract either Express or Implied (648-660). Gratuitous Service, Service without Request or Promise of Remuneration (648); Where there was no Intention to Charge (648); Where a Contract to Pay for Services may be Inferred from the Conduct of the Party Benefited (650); Using Goods not Ordered (651); Services rendered to one who is Insensible or wholly Incapable of Taking Care of himself at the time (653); Express Contract and Quantum Meruit or Quantum Valebat (654, 655); Assumpsit on Account Stated (657); Waiving the Tort and suing in Assumpsit (658, 659). (b) Money Had and Received (661-667). Basis and Gist of Assumpsit for Money Had and Received (661); When the Action will lie, and when not. Priv- ity Express or Implied (662); Privity, Agreement Express or Im- plied (665); Waiving Tort and suing in Assumpsit, and Waiving Contract and suing in Tort, Total Failure of Consideration, Receipt of the Money by the defendant (666). (c) Money Paid to Another's Use (667-669). Distinguished from Money Had and Received, Gist and Essentials of Assumpsit for Money Paid etc. (667); Officious Payment (668); Payments not Officious (669). (d) Assumpsit for Goods Bargained and Sold, and for Goods Sold and Delivered (669- 676). The two Actions distinguished. Common Counts (669); For Goods Sold and Delivered for Cash or Credit, when the Purchaser TABLE OF CONTENTS. XI Fails to Give the Note for the Price, or otherwise Fails to Comply with the Terms of Sale, "Written and Oral Contract of Sale (671, 672); Splitting Accounts In Assumpsit for Goods Sold etc, (673, 674, 676). Sec. 4. Remedies on Negotiable Instruments (676-682). Assumpsit at Common Law and under the Statute 4 Anne, c. 9 (676); Debt on Negotiable Instrument (678); Practice in Actions on Negotiable In- struments, Production of Instrument at the Trial (679); Action on a Lost Negotiable Instrument (680); When Allegation of a Con- sideration is, or is not. Necessary (681). Sec. 5. Performance of Conditions, when it must be Alleged (682-685), Dependent and Independent Covenants (682, 684). Sec. 6. Summary Proceedings to Collect Purchase Money due on Prop- erty Purchased at Judicial Sale, Separate Action at Law, Summary Proceedings in the Cause, Order of Re-sale, Concurrent Remedies (685). Sec. 7. Actions of Deceit, and of Deceit and False Warranty (690-706). Case and Assumpsit, Counts in Deceit and Warranty Joined (690); Trespass on the Case for Deceit, or Assumplt on the Warranty, at the Option of the plaintiff. Alleging and Proving the Scienter (691); Joinder of Deceit and False Warranty under the Code Practice, The Scienter when Material, When Deceit and False Warranty may be set up as a Counterclaim (693); Pure Deceit distinguished from False Warranty (693); Deceit for a False Statement which defend- ant did not Know to be False, nor did he Know it to be True (695); Latent and Patent Defects, Caveat Emptor, Suppressio veri, Sug- gestio falsi. Scienter (697); Damage must be Alleged and Proved (700); Measure of Damages in Deceit, What constitutes Actionable Deceit, Latent and Patent Defects, Suppressio veri and Suggestlo falsi. Issues, What constitutes Actionable Damage (700); Elements of the action of Deceit, Caveat Emptor, Vendor's Choice of Remedies. Rescission when Allowed, Puffing one's Wares, Counterclaim, Meas- ure of Damages (702); Deceit for Fraud Practiced by Vendee on Vendor (705); Vendor's Choice of Remedies, Recovery of Specific Chattels, Damages (706). Sec. 8. Conspiracy, Remedy for Conspiracy to Injure, Necessary Al- legations and Proof, Conspiring without Acting (707). Sec. 9. Injunction against Breach of Contract (710-713). Contracts in Restraint of Trade (710); Enforcement of Negative Covenants (712). Sec. 10. "Breach of Promise" (714). CHAPTER IX. Remedies in Spbciai, Cases. Sec. 1. Bills for Advice to a Fiduciary (716-720). The Jurisdiction for Advising Fiduciaries, and the Limits of such Jurisdiction (716); Limits of the Jurisdiction in Bills for Advice, Devises Construed in such Cases when, Parties, What Questions Answered (718). Sec. 2. Caveat to the Probate of a Will (720-726). Nature of the Pro- ceeding, Proceeding in rem. Nonsuit, Withdrawal, Citation "to See Proceedings," Parties (720); Who may Take Part in the Contro- versy, and at what Time and how they should Proceed (721) ; Double Caveat, Two Wills Propounded the Propounders of one being Ca- veators to the other. Issues, Form of Judgment (722) ; Effect of Caveat on the Executor or Administrator c. t. a. (725). Sec. 3. Partition ' (726-744). History of the Remedy at Law and in Equity, Proper Allegations of Petition, Practice, Form of Judgment (726); What Estates may be Divided by Actual Partition or by Sale for Partition (729); Equity Jurisdiction and Practice in Partition, Sale for Partition when Ordered and when not Ordered, Partial Xll TABI;E OF CONTENTS. Partition Actual or by Sale, Clerk's Jurisdiction (730); Essentials to Application for a Sale for Partition, Policy of the Law as to such Sales (731); Tenants in Common with a Partial Division made by the Donor, When Deeds and Wills Construed in Bills for Partition (732); Partition of Partnership Lands, Sale for Partition and Actual Partition in Equity, Setting Apart the Share of one Tenant and Leaving the Residue to be Held in Common by the other Tenants (734); Contribution for Defects, Implied Warranty in Partition, Caveat Emptor (736); Charges of Owelty to make the Partition Equal and Reasonable (738); Betterments put on the Common Prop- erty by one Tenant in Common, Equitable Partition (739); Remedy for Collection of Owelty (742); Partition of Chattels, Remedies of one Co-tenant of Chattels against another (743). Sec. 4. Sale of Real Estate and Chattels belonging to Infants (744-749). Jurisdiction of Equity Courts, What Estates may be Sold, What Cir- cumstances will Justify a Sale (744); Statutory Proceedings to Sell Realty of an Infant to make Assets for Payment of Debts (746); Statutory Proceedings to Sell Realty of an Infant for a Change of Investment, Proper Practice, Reference to Ascertain if Sale be Proper or Necessary, Report and Confirmation of Sale (747). Sec. 5. Inquisition of Lunacy (749-756). Jurisdiction and Practice in Equity, Acts of Lunatic before and after Adjudication, Estoppel by the Adjudication, Scope of the Inquiry (749); Practice under Modern Statutes (7o4). Sec. 6. Sale of Real Estate, by Personal Representative, to Make Assets for Payment of Debts of a Decedent (757-767). What the Complaint or Petition should Contain, Amount of Debts, Value of Personalty (757); Defenses Open to the Heirs and Devisees, Reference (758); Claiming the Homestead (759); Clerk's Powers and Duties in Desig- nating what Portion of the Lands shall be Sold (760) ; Parties, Cred- itors' Rights, Report and Confirmation of the Sale, Raising the Bid, Opening the Biddings, Attacking the Sale for Fraud (761); Status of Bidder before and after Confirmation, Date at which the Pur- chaser's Title is Fixed (764); Effect of Plaintiff's Counsel Advising the Defendants (765). Sec. 7. Creditors' Bill (767-777). True Character of General Creditors' Bill, Judgment Creditors' Bill, Rules of Equity Practice, Rules of Practice under the Code, Necessity for a Judgment at Law, Priori- ties (767); Necessity for a Judgment at Law in the United States Courts (771); Converting a Bill by one Creditor into a Creditors' Bill, Suspension of the Statute of Limitations, Contest of the Claim of one Creditor by another Creditor, What Creditors can Participate in the Fund (772); Precedent for Advertising for Creditors, Letting in Belated Creditors (775). Sec. 8. Remedy of Creditors under 13 Elizabeth (777-782). The Several Remedies of Creditors at Law and in Equity, Jurisdiction to Re- strain Execution Sale by a Creditor (777); Land Purchased by the Debtor but Title made to a Third Person (780); Remedy when Fraudulent Grantor is Dead (780). CHAPTER X. Extraordinary Remedies. Sec. 1. Habeas Corpus. Treated in Ch. 5, sec. 8, a; Ch. 6, sec. 1, a, and sec. 2, a. Sec. 2. Prohibition (783-787). The Remedy by Prohibition explained (783, 785). Sec. 3. Mandamus (787-796). Nature of the Remedy, When Mandamus will and will not Issue, Practice, Lord Mansfield's Form of Rule to Show Cause (787); Mandamus explained. When it is the Appropri- ate Remedy (790) ; Mandamus from a Superior to an Inferior Court (792); Alternative and Peremptory Mandamus (793, 794). TABLE OP CONTENTS. Xlll Sec. 4. Quo Warranto (796-804). Definition and Nature of Writ, Civil or Criminal? (196); Definition, History and Practice (797); Pro- ceedings in the Nature of Quo Warranto by the Crown, Burden of Proof (798); To Try Title to a Public Office under the Code Practice, Nature of the Common Law Remedy, Quo Warranto and Mandamus distinguished (799); For Usurping an Office in a Private Corpora- tion (801); Against Usurpers of Corporate' Franchises, Private Cor- porations (802); To Dissolve a Municipal Corporation (803). Sec. 5. Injunction (804-821). Nature of the Remedy, In what Cases In- junction will issue, Different Kinds of Injunction, Mandatory In- junctions (804); General Principles and Rules governing Injunc- tions, Nine Cases in which Injunction will issue (809) ; Common and Special Injunction distinguished. Code Practice (811); Interlocu- tory or Preliminary Injunction (812); Rules as to Granting and Dis- solving Restraining Orders or Interlocutory Injunctions (813); In- junction from a United States Court to Stay Proceedings in a State Court (815); Injunction against Proceeding at Law, Against Judg- ment and Execution at Law, to Stay Money in the hands of the Sheriff etc. (816); Injunction to Prevent the Commission of a Crime, To Test the Validity of a Town Ordinance (817); Effect of an Ap- peal upon an Order for an Injunction (818). Sec. 6. Bills of Peace and Quia Timet (821-827). Bills of Peace and Bills Quia Timet distinguished. Bills to Establish and Quiet Title to Realty, Multiplicity of Actions by different Plaintiffs (821); In- junction against Multiplicity of Actions by the same Plaintiff, Con- solidation of Actions, Code Practice, Motion in the Cause (824, 826). Sec. 7. Bills of Interpleader (828-831). Definition and Essentials (828); Code Practice, Form of Complaint, Privity between Claimants (828). Sec. 8. Certiorari (832-839). Nature and different Uses of the Remedy, Distinguished from Writs of Error and False Judgment, What the Petition must Show (832); Full Discussion of the Remedy, Dis- tinguished from Writ of Error, When and to what Tribunals it is- sues. What Courts can issue (833); Certiorari and Recordari dis- tinguished, How Used respectively (835); Certiorari in Cases in which no Appeal is Provided (836); Certiorari upon Suggestion of a Diminution of the Record (838); Certiorari to a Judge to Correct or Certify a Case on Appeal (838). Sec. 9. Recordari. Explained, The Writ before and after the Code Prac- tice, When the Appropriate Remedy, Practice, Supersedeas (839). Sec. 10. Scire Facias. Sci. Fa. Explained, Common Law and Code Prac- tice (841, 843). CHAPTER XI. Ancillary Remedies. Sec, 1. Arrest and Bail (846-850). In what Cases Arrest and Imprison- ment Allowed in Civil Actions (846); Sufllciency of the Affidavit, Duty of the Court as to Finding the Facts, Assertions upon Informa- tion and Belief, Motion to Vacate, Powers of Appellate Court (846); Arrest under Execution against the Person, Arrest where Proceed- ings in Arrest and Bail have not been Resorted to as an Ancillary Remedy (848). Sec. 2. Claim and Delivery. Whether or not the Ancillary Remedy of Claim and Delivery may be Dispensed with. Detinue (850). Sec. 3. Injunction. When (Granted as an Ancillary Remedy (851). Sec. 4. Attachment (852-861). Origin and Nature of the Remedy, Es- toppel, Voluntary Appearance by the Defendant (852); Explanation of Attachment at Common Law and as a Code Remedy (854); "Or- iginal Attachment" under Ancient Practice, and Attachment under the Code Practice (856); Nature of Attachment under the Code Prac- tice, Ancillary Remedy, Motion in the Cause, Motion to Vacate, Who may be let in as Parties (857); Sufficiency of Affidavit (858); At- XI \- TABLE OF CONTENTS. tachment against a National Bank (859); Doctrine of Pennoyer v. Neff (860). Sec. 5. Receivers and Sequestration, Ne Exeat (861-873). Nature and History of the Remedy of Appointing Receivers, Uses of tlie Remedy, Powers of Receivers, Limits of Powers (861); Actions which a Re- ceiver may maintain. General Rules governing Receiverships, Chan- cery Practice, Code Practice (863); Sequestration in Equity Ex- plained (865); Sequestration and Injunction, Principles which gov- ern the Courts in Granting and Removing such Process (866); Prop- erty in the hands of a Receiver to what Extent in Custodia Legis, and the Effect of such Custody on Third Persons (867); Principles governing the Courts in Applications for the Appointment of Re- ceivers (868); The Writ of Ne Exeat, History and Uses, Practice in Issuing, How its Place is Supplied under the Code Practice (870). CHAPTER XII. Jurisdiction. Jurisdiction of the Sub.iect-matter, Want of such Jurisdiction how Taken Advantage of. Effect of the Want of such Jurisdiction on the Judgment of the Court (874); Jurisdiction Defined, Jurisdiction of the English Courts, General and Special Jurisdiction, Jurisdiction of the Subject-matter, Objection to the Jurisdiction how and when Taken, Waiving the Want of Jurisdiction, Jurisdiction of the Federal Courts (875). Want of Jurisdiction of the Subject-matter, Grant of Letters of Administration upon the Estate of a Living Person, Want of Juris- diction of the Person, Fourteenth Amendment (877); When can Con- sent Confer Jurisdiction? General Appearance, Waiver of Want of Jurisdiction (882). When the Court ex mero motu will Dismiss for Want of Juris- diction, Venue (883) ; Concurrent Jurisdiction and Exclusive Juris- diction (883). Extra-territorial Effect of a Judgment, The Doctrine of Pennoyer V. Neff how far Applied to Divorce, "P^iU Faith and Credit" Clause (884); Attacking a Judgment for Fraud, Matters not within the Ju- risdiction of a Court sometimes Allowed as Defenses (891); Several Claims Each too Small for Superior Court Jurisdiction but the Ag- gregate within its Jurisdiction (895); Jurisdiction of Actions on Penal Bonds (895); How a Claim too Large to come within the Jurisdiction of an Inferior Court may be Brought within its Juris- diction, Remission (896); Fraud upon the Jurisdiction of the Court (898, 899). Jurisdiction of an Appellate Court In Cases in which it has no Original Jurisdiction, and in Cases in which its Jurisdiction Is Con- current with that of the Inferior Court (899). Jurisdiction of Courts of Equity, Origin, General Principles, Lim- itations (900, 901); Instances of Equity Jurisdiction (901); Legal and Equitable Remedies under the Code (905). What Constitutes a Court of Record (908); Local and Transitory Actions, Jurisdiction and Venue (909). CHAPTER XIII. Process. Sec. 1. Introductory (911-918). History and Nature of Writs as Process by which an Action was Commenced, Variance between the Writ and the Declaration (911); Nature of the Writ, Form, Defects, Objec- tions how and when to be Made and when Waived (915); The Prln- TABLE OF CONTliNTS. XV clpal Writs in Use under the Common Law Practice (916); Original Writ, Trespass on the Case (916); Writ of Debt, Writ of Debt on two Bonds, Writ of Debt Qui Tam (917); Writ of Covenant, Detinue, Trover, Trespass vi et armis. Trespass q. c. f. (917); Writ of Debt against an Individual and an Executor, Writ of Replevin (917) ; Writ of Waste (918). Sec. 2. Subpoena In Equity, Process In Equity, Form of Subpoena In Equity (918, 919). Sec. 3. Mesne Process (920). Sec. 4. Arrest, Common and Special Bail, Appearance. Evolution of Ar- rest in Civil Actions, Shameful Oppression by Imprisonment for Debt, Affidavit (920). Sec. 5. When a Writ Is Issued (922-925). Writ Signed by the Clerk In May but not Delivered to the Sheriff until July (922); Writ Signed by the Clerk in April and not Delivered to the Sheriff at all, Vol- untary Appearance by Defendant in September (923); When Is a Writ "Issued" and an Action "Commenced?" (925). Sec. 6. Summons under the Code Practice (926-944). Common Law Writ, Subpoena in Equity, Summons under the Code, Variance between the Process and the Complaint (926); Service of the Summons (928); What is Personal Service (930); Waiver of Defects in the Service, General Appearance (932); General, Special, and Quasi Ap- pearance, How when and for what Purposes a Special Appearance may be Entered (933); Special Appearance to Move to Dismiss, Gen- eral Appearance upon such Motion being Overruled, Practice in such Cases (935); Effect of Failure to Serve Lawful Process (936); Serv- ice by Publication, When Constitutional, Actions in rem and in personam. Manner of Service on Nonresidents, Doctrine of Pennoyer V. Neff (936); Different Methods of Making Due Service of Process, Effect of Service other than Personal Service within the Territorial Jurisdiction of the Court, Proceedings in rem and In personam, Amendment of Summons (939); Prerequisites to Valid Service by Publication, Essentials of the Affidavit (942). CHAPTER XIV. Parties. Necessity for Naming the Plaintiffs, Action by Copartnership (945, 946); Naming the Defendants (946, 947); Result of a Defect of Parties in a Court of Law, Misjoinder and Nonjoinder (947); Result of a Defect of Parties in a Court of Equity (949) ; Result of Defect of Parties under the Code Practice (949); Corporations as Parties (950). Infants as Parties Plaintiff or Defendant, Prochein Amy, Guardian ad litem (951); Equity Practice when Infants are Defendants (952); Practice In the Appointment of Prochein Amy or Guardian ad litem for Infant Parties, Common Law and Code Practice, How far Infants are Bound by Fraudulent Judicial Proceedings (953); How to Pro- ceed when there are Infant Defendants, Infants Appearing by At- torney (957); Service of Summons on Infants (959); Infant in ventre sa mere as a Party (960). Married Women as Parties Plaintiff and Defendant (962); Mar- riage of Feme Sole Party Pendente Lite (965); Married Women as Parties in Equity (965); Married Women as Plaintiffs under the Code Practice (966); Married Women as Defendants under the Code Prac- tice (967). Lunatics as Parties (969); Service of Summons on Insane Defend- ant, Guardian as a Party, Venue (971). Parties in Equity, Numerous Parties, Trustee and Cestui Que Trust as Parties, A Few of a Class Sufficient when (974, 976); How Long a Party is Considered to be in Court, When Notice of a Motion is Required (978); Joint Parties, Several Parties, Joint and Several Parties (978). TABLE OF CASES [the figures befek to the pages.] A. Ackerson v. Erie R. R., 909. Adams v. Lisher, 472. Adderton v. Melchor, 132. . Ahalt, Shafer v., 416. Albea v. Griffin, 311. Alexander, Taylor v., 483. Allen V. Crofoot, 240. Allen V. Greenlee, 464. Allen, Smith v., 139. Allen V. Taylor, 315. Allman, Morrow v., 679. Alsbrook v. Shields, 60. Alvord, Cable v., 870. Ames V. Kansas, 797. Amick V. O'Hara, 48. Amis, Bradley v., 233. Amunson, Sieber v., 88. Anders, Dunham v., 110. Andress v. State, 841. Anonymous, 230. Archibald v. Means, 918. Armstead, Barbee v., 501. Arnold, Dougan v., 832. Arrington, Vass v., 764. Arundel v. McCulloch, 73. Asbury, McDowell v., 843. Ashby V. White, 485. Ashley, Butterfleld v., 524. Askew, Pritchard v., 294. Assurance Co., Manufacturing Co. v., 92. Atcheson v. Bveritt, 106. Atkins, Story v., 676. Atty. Gen. v. City of Paterson, 812. Atty. Gen. v. Hunter, 219. Atwell V. McLure, 133. Austin, Stevenson v., 976. Avery v. Lumber Co., 568. Aydlett, Tillett v., 760. Ayers, Credle v., 288. B. Bacon v. Johnson, 942. Badger v. Phinney, 361. Baer v. Martin, 246. Bailey v. Schnitzius, 230. Bain v. State, 162. Baker, Chamblee v.. 555. Baker v. Cordon, 102. Baker, Slater v., 412. Baker, Sweeney v., 428. Ballance, Marks v., 676. Ballard, Santom v., 882. Ballentine, Park v., 949. Ballon, Nat. Tube Works Co. v., 771. Bait. C. P. R. Co. V. Kemp, 395. Bandfield v. Bandfield, 513. Bankhead, Williams v., 974. Barbee v. Armstead, 501. Barbour, Robinson v., 681. Barfield v. Turner, 466. Barker, Rex v., 787. Barkley v. Wilcox, 83. Barnard, Vane v., 209. Barnes v. Harris, 336. Barnes v. Martin, 52. Barrett, Sowell v., 297. Bartholomew v. Jackson, 648. Bartlett v. Kochel, 535. Barton v. Osborn, 213. Barwick v. Barwick, 614. Basely, Leward v., 15. Bates, Henderson v., 901. Battle V. Davis, 863. Beatty, N. C. Land Co. v., 332. Bechinor, Gamly v., 947. Bell, Hargett v., 817. Benjamin v. Teel, 721. Benson v. Remington, 541. Benthall, Powell v., 504. Berino, Olivant v., 609. Berthon v. Cartwright, 503. Bethea v. McLennon, 601. Bigaouette v. Paulet, 495. Biggs, Ex parte, 836. Bills, Rinehart v., 501. Bishop, Myrick v., 243. Bishop V. Weber, 407. Blalock, Strayhorn v., 928. Bland, Hobbs v., 693. Blann, Given v., 87. Blewitt, In re, 754. Bloom, Jesus College v., 207. Blount V. Pritchard, 757. Blue Mt. Forest Asso., Ellis v., 265. Blythe, Bryan v., 874. Boaro, Brhardt v., 262. XVlll TABLE OF CASES. [THE FIGUEES REFEK TO THE PAGES.] Boing V. R. R., 899. Bois V. Bois, 418. Boland, Freeman v., 336. Bond, Inge v., 693. Bond, Tayloe v., 716. Boney, Pullen v., 210. Booth V. Clark, 861. Bost V. Mingues, 49. Bowers v. R. R., 326. Boxley V. Collins, 210. Boyce v. Willianjs, 609. Boyle V. Robbins, 673. Brackenridge, Lewis v., 920. Bradley v. Amis, 233. Bragg V. Lyon, 730. Brame v. Clark, 238. Brame v. Swain, 317. Branch v. Frank, 858. Brandenburg, Grove v., 462. Bray, Dozier v., 634. Bray, Leame v., 394. Briggs V. Evans, 527. Briley v. Cherry, 600. Brittain, Patton v., 651. Brittain v. Payne, 325. Brock V. Copeland, 33. Bronson v. Klnzie, 115. Brooks V. Stlnson, 8. Brothers v. Hurdle, 190. Brown, Cain v., 803. Brown, Doyle v., 936. Brown, Field v., 342. Brown v. Gray, 697. Brown v. Osborn, 838. Brown v. Perkins, 75. Brown v. Ramsay, 544. Brown, Silloway v., 250. Brumfield, Wilson v., 313. Bryan v. Blythe, 874. Bryan v. Fisher, 682. Bryan v. Moring, 722. Bryan v. Stewart, 457. Bucknam, Nichols v., 669. Budget Pub. Co., Dooling v., 626. Bullinger v. Marshall, 324. Buntin, Jones v., 895. Burgess v. Carpenter, 580. Burton v. Farinholt, 780. Burwell, Knott v., 430. Busbee v. Macy, 184. Butchers' Union, Cres. Live Stock Co. v., 466. Butler, Setzar v., 624. Butterfield v. Ashley, 524. B. & G. Furniture Co., Powell v., 214. Cable V. Alvord, 870. Cain V. Brown, 803. Camp, Love v., 306. Campbell v. Race, 77. Canby, Hough v., 952. Cannady, State v., 103. Caperton v. Schmidt, 151. Carmichael v. Moore, 645. Carpenter, Burgess v., 580. Carr, Featherstone v., 826. Carr, Lease v., 726. Carrol v. Green, 344. Carruthers v. Tillman, 232. Carter v. Glass, 691. Cartwright, Berthon v., 503. Cassady v. Laughlin, 339. Caton, Day v., 650. Chalk V. Wyatt, 261. Chambers, Webb v., 657. Chamblee v. Baker, 555. Chase, Gibbs v., 622. Chatham Furnace Co. v. Moffatt, 695. Cheek, Ramsey v., 422. Cherry, Briley v., 600. Cheshire, Condry v., 173. Cheshunt, Rex v., 70. Child v. Homer, 432. Childs V. Martin, 883. City of Paterson, Atty. Gen. v., 812. City of St. Joseph, Smith v., 511. Clap, Com. v., 413. Clarendon v. Hornby, 738. Clark, Booth v., 861. Clark, Brame v., 238. Clark V. Downing, 383. Clark, Ex parte, 575. Clark, Gardner v., 678. Clark V. Goodwin, 635. Clark, Louis. & St. L. R. R. v., 366. Clegg, Cobb v., 813. Cline V. Green, 978. Clitheroe Case, 491. Cobb V. Clegg, 813. Cobb, Wheeler v., 932. Coffey, Jones v., 175. Coffield v. McLean, 746. Cole v. Turner, 391. Colgrove v. Koonce, 158. Collins, Boxley v., 210. Colter V. Lower, 459. Comrs., R. R. (Conn. Riv.) v., 783, Comrs., Fry v., 794. Comrs., Lutterloh v., 793. Comrs. v. White Water Canal Co., 112. Com. V. Clap, 413. Com. V. Donahue, 53. Com. V. Graham, 547. Condry v. Cheshire, 173. Conklin, Wehrman v., 182. Conklin v. Smith, 667. Conner v. New Albany, 247. Construction Co., Young v., 567. Conway v. Grant, 31. TABLE OF CASES. XIX [TI-IB FIGUKES REl-'EK TO THE PAGES.] Cookson, Somerset v., 608. Cooley, Stewart v., 479. Coombs V. Rose, 425. Cooper V. Hamilton, 263. Cooper V. Helsabeck, 659. Cooper, White v., 148. Copeland, Brock v., 33. Cordon, Baker v., 102. Cox, Thompson v., 761. Cox, Worth v., 646. Craighead v. Pike, 734. Craker v. R. R. (Chic. & N. W.), 392, Crane v. McDonald, 828. Cranmer v. Graham, 654. Craton, State v., 17. Credle v. Ayers, 288. Cres. Live Stock Co. v. Butchers' Union, 466. Crickett, McManus v., 592. Crofoot, Allen v., 240. Oronenwett, McGurk v., 589. Cronk, Mich. Mut. Ins. Co. v., 197. Crosby, Palmer v., 978. Crouch V. Martin, 599. Daggett V. Robins, 355. Daniel, Farmer v., 174. Daniel, Penniman v., 860. Daniel, Queen v., 582. Davis, Battle v., 863. Davis V. Davis, 731. Davis V. Judd, 628. Davis, Reeves v., 908. Davis, State v., 38. Day V. Caton, 650. Day, Tasburgh v., 178. Deal, Price v., 277. Deal V. Sexton, 960. Deans v. R. R., 399. Deans, Thompson v., 314. Dearman, Irwin v., 530. Deaver, Mosseller v., 65. Den V. Morris, 119. Dick, Holtz v., 503. Dickens, Ricketts v., 281. Dickerson, In re, 747. Dickey, Robinson v., 743. Diggs V. Wolcott, 815. Dills V. Hampton, 161, 252. Dilts V. Kinney, 625. Dist. Atty. V. L. & B. R. R., 218. Dist. Med Soc, State, Elder, pros, v., 833. Docter v. Riedel, 475. Dodson V. Mock, 618. Doe V. Mace, 172. Doe V. West, 140. Dollar. Garrard v., 300. Donahoe v. Richards, 538. Donahue, Com. v., 53. Dooling V. Budget Pub. Co., 626. Dorshelmer v. Roorback, 969. Dougan v. Arnold, 832. Dougherty v. Stepp, 236. Dowd v.'Seawell, 640. Downer Ker. Oil Co., Wellington v., 409. Downing, Clark v., 383. Doyle V. Brown, 936. Dozier v. Bray, 634. Duffy V. Murrill, 358. Dunham v. Anders, 110. Dupree v. Dupree, 204. Durham, Porter v., 188. E. Early, Ely v., 905. Early, Joyner v., 706. Edwards, Hogwood v., 260. Eisenhauer v. Quinn, 198. Bley, White v., 328. Elliott, Scott v., 598. Ellis V. Blue Mt. For. Asso.. 265. Elwell, Low v., 62. Ely V. Early, 905. Erhardt v. Boaro, 262. Etheridge v. Vernoy, 271. Evans, Briggs v., 527. Evans v. Norris, 2. Everitt, Atcheson v., 106. P. Farinholt, Burton v., 780. Farmer v. Daniel, 174. Farmer, Joyner v., 298. Farmers' Bank, Glenn v., 775. Parnham v. Hay, 642. Farrar, Gordon v., 488. Farrell v. Railroad, 3. Featherston v. Carr, 826. Ferebee, Morrisette v., 759. Ferguson v. State, 92u. Field V. Brown, 342. Finley v. Simpson, 629. Fisher, Bryan v., 682. Fisher v. Greensboro Water Supply Co., 328. FiscTili V. Fischli, 515. Fitzgerald v. Robinson, 426. Fletcher, Gylbert v., 631. Flinn, Francis v., 438. Flournoy, Vick v., 939. Foran, Smith v., 578. Fort, White v., 113. Fortescue, Smith v., 258. Fountain, Manning v., 666. Foust, Slaughter v., 285. Fraley, Stokes v., 256. XX TABLE OF CASES, [THE FIGURES REPEB TO THE PAGES.] Francis v. Flinn, 438. Frank, Branch v., 858. Fraser v. Little, 637. Frazier, Paul v., 390. Freeman v. Boland, 336. Freeman, Nichols v., 304. Frink v. Stewart, 851. Fritsche v. Fritsche, 166. Froneterger v. Lewis, 295. Fry V. Comrs., 794. Fullerton v. Warrick, 386. G. Ga. Iron & Coal Co., Simmons v., 439. Gale, Squier v., 792. Gamly v. Bechinor, 947. Gammon v. Johnson, 287. Ganley v. Looney, 249. Gardner v. Clark, 678. Garrard v. Dollar, 300. Gates, Grimes v., 381. Gatling, Saunders v., 799. Gentry v. Harper, 780. Gentry, Morris v., 953. Gernerd v. Gernerd, 507. Gheen, Plummer v., 463. Gibbs V. Chase, 622. Gidney, Moore v., 765. Gilchrist v. Middleton, 163. Given v. Blann, 87. Gladstein. Levin v., 891. Glancy, Johnston v., 309. Glass, Carter v., 691. Glenn v. Farmers' Bank, 775. Glover v. Riddick, 613. Goddard, Green v., 41. Goddard, Peirce v., 195. Godwin, Holmes v., 603. Goode, State v., 39. Goodman v. Winter, 744. Goodson, Keener v., 94. Goodtitle, Jared v., 139. Goodwin, Clark v., 635. Gordon v. Farrar, 488. Gordon v. Lowther, 205, Gould, Ex parte, 100, Governor v. Howard, 109. Gragg v. Wagner, 275. Graham Crammer v. 654. Graham, Com. v., 547. Graham v. O'Bryan, 935. Grammer, Parker v., 866. Grandona v. Lovdall, 82. Grant, Conway v., 31. Graves, Wood v., 470. Gray, Brown v., 697. Green, Carrol v., 344. Green, Cline v., 978. Green v. Goddard, 41. Green v. Griffin, 818. Green v. Liter, 121. Green, Moore v., 320. Green v. State, 930. Greenfield Bank v. Leavitt, 616. Greenlee, Allen v., 464. Greensboro Water Supply Co., Fisher v., 328. Gregory v. Paul, 962. Gregory v. Thomson, 632. Grosso V. Railroad (Del. L. & W.),. 369. Griffin, Albea, 311. Griffin, Green v., 818. Griffin, Schenk v., 852. Griffin, White v., 619. Grimes v. Gates, 381. Grist V. Hodges, 282. Grlswold V. Sabln, 302. Grove v. Brandenburg, 462. Guntner, Vegelahn v., 586. Gylbert v. Fletcher, 631. H. Haddock v. Haddock, 884. Hafner, Loutz v., 348. Hagar, Shirley v., 951. Hale, Whitehead v., 868. Hall V. Piddock 739. Hamilton, Cooper v., 263. Hamilton, McMinn \., 883. Hamlin v. Mack, 43. Hammersley, Tyler v., 816. Hammond, Story v., 406. Hampton, Dills v., 161, 252. Hancock v. Railroad, 564. Hancock v. Ritchie, 923. Hancock v. Wooten, 767. Hankins v. Newell, 801. Hanna v. Mills, 672, Hardware Co., Railroad v., 473- Hargett v. Bell, 817. Hargrove v. Powell, 138. Harkey v. Houston, 156, Harman, Kimball v., 707. Harman, State v., 19, Harper, Gentry v., 780. Harper, Southerland v., 777, Harris, Barnes v., 336. Harris v. Theus, 710, Harrlss v. Sneeden, 846. harshaw v. McKesson, 290. Hart V. Leonard, 809. Hartsfleld v. Jones, 644, 835. Harward, HoUeman v., 509. Haskins v. Royster, 583. Hasty, Huntley v., 848. Hatchell v. Klmbrough, 250. Haughton v. Leary, 922, Hay, Farnham v., 642, Hay V. McCoy, 950. TABLE OF CASES. XXI [THE riGTJEES REFER TO THE PAGES.] Hays V. Lanier, 945. Hayward, James v., 72. Hayward, Peters v., 360. Hazell, Pate v., 2. Heath v. Williams, 82. Helsabeck, Cooper v., 659. Henderson v. Bates, 901. Hendricks, Simmons v., 732. Hensley, Horton v., 245. Herman v. Watts, 742. Herndon, State v., 453. Hipp V. Rabin, 901. Hoar, Jones v., 658. Hobbs V. Bland, 693. Hobbs V. Railroad, 537. Hodges, Grist v., 282. Hogwood V. Edwards, 260. Holland, Magee v., 526. Hollman, Ex parte, 572. Holleman v. Harward, 509. Hollingsworth, Page v., 254. Hollister, Kill v., 91. Holmes v. Godwin, 603. Holmes v. Johnson, 461. Holtz V. Dick, 503. Hooker v. State, 908. Hoover, Lewis v., 385. Hopkins v. Lee, 305. Hornby, Clarendon v., 738. Homer, Child v., 432. Horton v. Hensley, 245. Hough V. Canby, 952. Hough V. Martin, 186. Hough, State v., 13. Houghtalling, Knight v., 318. Houston, Harkey v., 156. Howard, Governor v., 109. Hubbard v. Preston, 80. Hughes V. Jones, 749. Hughes, Wilson v., 605. Hume V. Tufts, 623. Hunter, Atty. Gen. v., 219. Huntley v. Hasty, 848. Hunton v. Luce, 896. Hurdle, Brothers v., 190. Hurst, Powers v., 946. Hutson V. Sawyer, 720. I. Inge V. Bond, 693. Ingram, McDonald v., 170. Insurance Co., Long v., 936. Irons, Richmond v., 772. Irwin v. Dearman, 530. Iveson V. Moore 220. J. Jackson, Bartholomew v., 648. Jackson, Regina v., 491. Jackson v. Telegraph Co., 478. James v. Hayward, 72. James, Tenn. M'fg. Co. v., 546. Jared v. Goodtitle, 139. Jarman v. Saunders, 811. Jarman v. Ward, 850. Jenkins v. Waldron, 487. Jernigan, McCormick v., 680. Jerome v. Ortman, 338. Jesus College v. Bloom, 207. Johnson, Bacon v., 942. Johnson, Gammon v., 287. Johnson, Holmes v., 461. Johnson v. Pate, 157. Johnson v. Perry, 50. Johnston v. Glancy, 309. Johnston v. Pasteur, 359. Jones V. Buntin, 895. Jones V. Coffey, 175. Jones, Hartsfield v., 644, 835, Jones V. Hoar, 658. Jones, Hughes v., 749. Jones, King v., 283. Jones, McLeod v., 55. Jones, Railroad v., 397. Jones, Southerland v., 203. Jones V. Towne, 71. Jones, Whissenhunt v., 147 Joyner v. Early, 706. Joyner v. Farmer, 298. Judd, Davis v., 628. Judd V. Mining Co., 845. Justice, Simpson v., 228. K. Kansas, Ames v., 797. Keary, R. R. v., 560. Keener v. Goodson, 94. Keller, Kroessin v., 498. Keller, McRae v., 107. Kelly V. Lett, 351. Kelsey, Penoyar v., 854. Kemp v. Mitchell, 296. Kemp, Railroad (Bait. C. P.) v., 395. Kendall, Gates v., 330. Kendall v. Stone, 179. Kennedy v. Wheatley, 242. Kerstetter v. Raymond, 655. Kill V. Hollister, 91. Killian v. Railroad, 537. Kimball v. Harman, 707. Kimbrough, Hatchell v., 250. King V. Jones, 283. King V. Railroad, 839. Kinney, Dilts v., 625. Kinzie, Bronson v., 115. Kitchle, Overcash v., 163. Knight V. Houghtalling, 318. Knott V. Burwell, 430. Kochel, Bartlett v., 535. xxn .TABLE OF CASES. [the figuees eefee to the pages.] Koonce, Colgrove v., 158. Kroessln v. Keller, 498. Kyles V. Railroad, 517. L. Lade v. Shepherd, 248. La Grange v. State Treasurer, 790. Lajoie, Phil. Ball Club v., 712. Lanier, Hays v., 945. Lassiter v. Ward, 690. Laughlin, Cassady v., 339. Leach, Womble v., 617. Leame v. Bray, 394. Leary, Haughton v., 922. Lease v. Carr, 726. Leavitt, Greenfield Bk. v., 616. Lee, Hopkins v., 305. Leigh, Rex v., 798. Leonard, Hart v., 809. Lett, Kelly v., 351. Levin, Gladstein v., 891. Leward v. Basely, 15. Lewis V. Brackenridge, 920. Lewis, Froneberger v., 295. Lewis V. Hoover, 385. Lewis V. McNatt, 949. Lewis, Ransom v., 59. Life Association, Scott v., 933. Lindeman v. Lindsey, 259. Lindsay, Nixon v., 736. Lindsey, Lindeman v., 259. Lisher, Adams v., 472. Lister's Case, 490, 491. Liter, Green v., 121. Little, Fraser v., 637. Little V. Thorne, 718. Loane, Sharpe v., 264. Long V. Insurance Co., 936. Long, Maddrey v., 145. Long v. McLean, 846. Loomis, May v., 702. Looney, Ganley v., 249. Loubz V. Hafner, 348. Loxdoll, Grandona v., 82. Love v. Camp, 306. Low v. Elwell, 62. Lowe V. Peers, 637. Lowe, Turner v., 160. Lower, Colter v., 459. Lowther, Gordon v., 205. Luce, Hunton v., 896. Lumber Co., Avery v., 568. Lumber Co. v. Lumber Co., 257. Lumber Co., Railroad v., 268. Lumber Co., Smith v., 549. Lunn v. Shermer, 700. Lunsford, State v., 456. Lutterloh v. Comrs., 793. Lyman, Perkins v., 630. Lyon, Bragg v., 730. Lyon, State v., 374. M. Mace, Doe v., 172. Mack, Hamlin v., 43. Maoferlan, Moses v., 661. Macy, Busbee v., 184. Madre, Potter v., 192. Maddrey v. Long, 145. Magee v. Holland, 526. Magruder v. Randolph, 674. Manfg. Co. v. Assurance Co., 92. Manfg. Co. v. National Bank, 859. Manfg. Co. v. Railroad. 220. Manning v. Fountain, 666. Manning v. Manning, 966. Marks V. Ballance, 676. Marsden, Rex v., 796. Marsh, McCrea v., 270. Marsh v. Williams, 856. Marshall, Bullinger v., 324. Martin, Baer v., 246. Martin, Barnes v., 52. Martin, Childs v., 883. Martin, Crouch v., 599. Martin, Hough v., 186. Massachusetts, Rhode Island v., 875. May V. Loomis, 702. Mayor of N. Y., Railroad (Third Ave.) v., 824. Mayor of Norwich v. Swan, 2'48. Maxwell, Skinner v., 867. MeClees v. Sikes, 349. McCombs V. Wallace, 169. McCormick v. Jernigan, 680. McCoy, Hay v., 950. McCrea v. Marsh, 270. McCulloch, Arundel v., 73. McDonald, Crane v., 828. McDonald v. Ingram, 170. McDowell V. Asbury, 843. McGarr v. N. & P. Worsted Mills, 541. McGraw, Van Pelt v., 350. McGurk V. Cronenwett, 589. Mcintosh, Scott v., 341. McKesson, Harshaw v., 290. McLean, Coffield v., 746. McLean, Long v., 846. McLennon, Bethea v., 601. McLeod V. Jones, 55. McLure, Atwell v., 133. McManus v. Crickett, 592. McManus v. Railroad, 222. McMinn v. Hamilton, 883. McNatt, Lewis v., 949. McNeal, Scott v., 877. McRae v. Keller, 107. McRae v, Morrison, 671. TABLE OF CASES. XXlll [the riGUBES REFER TO THE PAGES.] Meadows v. Smith, 668. Means, Archibald v., 918. Mebane v. Mebane, 291. Mebane, Turner v., 200. Melchor, Adderton v., 132. Melchor, Miller v., 146. Mich. Mut. L. Ins. Co. v. Cronk, 197. Middleton, Gilchrist v., 163. Miller v. Melchor, 146. Miller, Morris v., 497. Miller v. State, 45. Miller, Tuite v., 285. Miller v. "Washburn, 865. Mills, Hanna v., 672. Mingues, Bost v., 49. Mining Co., Judd v., 845. Minor v. Sharon, 411. Mitchell, Kemp v., 296. Mitchell V. Railroad (Roch.), 401. Mock, Dodson v., 618. MofEatt, Chatham Furnace Co. v., 695. MofEatt, Taylor v., 460. Monroe, State v., 407. Monsley, Villers v., 415. Montgomery, Person v., 758. Moore, Carmichael v., 645. Moore v. Gidney, 765. Moore V. Green, 320. Moore, Iveson v., 220. Moore v. Thompson, 898. Moore, Wharton v., 176. Moore, Wilson v., 926. Moring, Bryan v., 722. Morris, Den v., 119. Morris v. Gentry, 953. Morris v. Miller, 497. Morris, White v., 957. Morrisette v. Ferebee, 759. Morrison, McRae v., 671. Morrison v. Morrison, 206. Morrow v. Allman, 679. Moses V. Macferlan, 661. Mosseller v. Deaver, 65. Murphey, Wilson v., 346. Murrill, DufCy v., 358. Myrick v. Bishop, 243. N. Nat. Bank, Manfg. Co. v., 859. Nat. Tube Works Co. v. Ballon, 771. N. C. Land Co. v. Beatty, 332. Neagle, In re, 450. Neal V. Wilcox, 620. Nevin v. Pullman Car Co., 353. New Albany, Conner v., 247. Newell, Hankins v., 801. Newell, Snider v., 531. Newell V. Whitcher, 385. Nichols V. Buokman, 669. Nichols V. Freeman, 204. Nisbet, Ware v., 838. Nixon V. Lindsay, 736. Norris, Evans v., 2. Norwood V. O'Neal, 665. N. & P. Worsted Mills, McGarr v., 542. 0. Gates V. Kendall, 330. Gates, State v., 97. O'Brien v. O'Brien, 208. O'Bryan, Graham v., 935. O'Hafa, Amick v., 48. Olivant v. Berino, 609. O'Neal, Norwood v., 665. O'Neill, Pittock v., 434. Ortman, Jerome v., 338. Osborn, Barton v., 213. Osborn, Brown v., 838. Osborn, Price v., 140. Overcash v. Kitchie, 163. P. Page V. HoUingsworth, 254. Palin V. Small, 946. Palmer v. Crosby, 978. Palmer v. Railroad & Elec. Co., 388, Palmer's Will, In re, 725. Park V. Ballentine, 949. Parker v. Grammer, 866. Parker v. Staniland, 246. Parker v. Taylor, 188. Parrott, State v., 74. Parsell v. Stryker, 315. Pasteur, Johnston v., 359. Pate V. Hazell, 22. Pate, Johnson v., 157. Pate, State v., 96. Pat. & Ham. Turnpike Co., State v., 802. Patton V. Brittain, 651. Paulet, Bigaouette v., 495. Paul V. Frazier, 390. Paul, Gregory v., 962. Payne, Brittain v., 325. Payne, Washburn v., 895. Peers, Lowe v., 637. Peirce v. Goddard, 195. Penniman v. Daniel, 860. Penoyar v. Kelsey, 854. People, Pond v., 9. Perk-ins, Brown v., 75. Perkins v. Lyman, 630. Perry, Johnson v., 50. Perry v. Phipps, 16. Person v. Montgomery, 758. Peters v. Hayward, 360. Phil. Ball Club v. Lajoie, 712. XXIV T.VBLE OP CASE3S. [the figures refer to the pages.] Phinney, Badger v., 361. Phipps, Perry v., 16. Piddock, Hall v., 739. Pierce v. Railroad, 595. Pike, Craighead v., 734. Pittock V. O'Neill, 434. Ploof V. Putnam, 23. Plummer v. Gheen, 463. Pond V. People, 9. Pope, Vick v., 967. Porter v. Durham, 188. Porter v. Railroad, 266. Porter, Stuard v., 971. Potter V. Madre, 192. Powell V. Benthall, 504. Powell V. B. & G. Furn. Co., 214. Powell, Hargrove v., 138. Powers V. Hurst, 946. Preston, Hubbard v., 80. Preston, Roberts v., 60. Price V. Deal, 277. Price V. Osborn, 140. Pritchard v. Askew, 294. Pritchard, Blount v., 757. Pullen v. Boney, 210. Pullman Car Co., Nevin v., 353. Putnam, Ploof v., 23. Q. Quails, Rasor v., 237. Queen v. Daniel, 582. Quinn, Eisenhauer v., R. 198. Rabin, Hipp v., 901. Race, Campbell v., 77. Railroad (Erie), Ackerson v., 909. Railroad, Boing v., 899. Railroad, Bowers v., 326. Railroad (L. & St. L.) v. Clark, 366. Railroad (Conn. Riv.) v. Comrs., 783. Railroad (Chi. & N. W.), Craker v., 392. Railroad, Deans v., 399. Railroad (L. & B.), Dist. Atty. v., 218. Railroad, Farrell v., 3. Railroad (Del., L. & W.), Grosso v., 369. Railroad, Hancock v., 564. Railroad v. Hardware Co., 473. Railroad, Hobbs v., 537. Railroad v. Jones, 397. Railroad v. Keary, 560. Railroad (Bait. City P. Ry.), Kemp v., 395. Railroad, Killian v., 537. Railroad, King v., 839. Railroad, Kyles v., 517. Railroad v. Lumber Co. 268. Railroad, Manfg. Co. v., 220. Railroad (Third Ave.) v. Mayor, 824. Railroad, McManus v., 222. Railroad (Roch.), Mitchell v., 401. Railroad & Elec. Co., Palmer v., 388. Railroad, Pierce v., 595. Railroad, Porter v., 266. Railroad (T. & C.) v. Railroad (E. Ala.), 167. Railroad (N. Y. C. & H.), Rich v., 321. Railroad, Ridley v., 234. Railroad (Erie), Rogers Loc. & Mach. Works v., 804. Railroad (C. H. & D.) v. Waterson & Kirk, 255. Railroad, Wesson v., 592. Railroad, Williams v., 331, 540. Railroad (Middlesex), Wilton v., 539. Ramsay, Brown v., 544. Ramsey v. Cheek, 422. Ramsey, State v., 20. Randolph, Magruder v., 674. Ransom v. Lewis, 59. Rasor v. Quails, 237. Ratledge, West v., 911. Rawson, Slater v., 273. Raymond, Kerstetter v., 655. Raymond v. Russell, 438. Reddick, Tredwell v., 244. Reeves v. Davis, 908. Regina v. Jackson, 491. Remington, Benson v., 541. Rex V. Barker, 787. Rex v. Cheshunt, 70. Rex V. Leigh, 798. Rex V. Pister, 491. Rex V. Marsden, 796. Rex V. Rosewell, 81. Rhode Island v. Massachusetts, 875. Rich V. Railroad (N. Y. C. & H.), 321. Richards, Donahoe v., 538. Richardson v. Strong, 653. Richmond v. Irons, 772. Ricketts v. Dickens, 281. Riddick, Glover v., 613. Ridley v. Railroad, 234. Riedel, Docter v., 475. Rinehart v. Bills, 501. Ritchie, Hancock v., 923. Robbins, Boyle v., 673. Roberson v. Roch. Box Co., 900. Roberts v. Preston, 60. Robins, Daggett v., 355. Robinson v. Barbour, 681. Robinson v. Dickey, 743. Robinson, Fitzgerald v., 426. TABLE OJ? CASES. XXV [the FltUBES KEFEB TO THE PAGES.] Roch. Box Co., Roberson v., 900. Rogers Loc. & Mach. Works v. Rail- road (Erie), 804. Roorback, Dorsheimer v., 969. Rose, Coombs v., 425. Rose, Stevens v., 201. Roseman v. Roseman, 959. Rosewell, Rex v., 81. Ross, State v., 67. Royster, Haskins v., 583. Russell, Raymond v., 438. Sabin, Griswold v., 302. Sackett v. Wilson, 965. Santom v. Ballard, 882. Saunders v. Gatling, 799. Saunders, Jarman v., 711. Savage, Tuberville v., 384. Sawyer, Hutson v., 720. Scantling, Titus v., 90. Schenck v. Griffin, 852. Schmidt, Caperton v., 151. Schneider, In re, 446. Schnitzius, Bailey v„ 230. Schuer v. Veeder, 620. Scott V. Elliott, 598. Scott V. Life Association, 933. Scott V. Mcintosh, 341. bcott V. McNeal, 877. Scott V. Shepherd, 382. Seawell, Dowd v., 640. Sergeant & Harris v. Stryker, 662. Setzar v. Butler, 624. Setzer v. Wilson, 705. Sexton, Deal v., 960. Shafer v. Ahalt, 416. Sharon, Minor v., 411. Sharon v. Tucker, 821. Sharpe v. Loane, 264. Sharps, Webster v., 925. Shaw V. Vincent, 313. Shaw, Williams v., 280. Shepherd, Lade v., 248. Shepherd, Scott v., 382. Shermer, Lunn v., 700. Shields, Alsbrook v., 60. Shirley v. Hagar, 951. Shirton, Snigge v., 212. Shooting Club v. Thomas, 232. Shooting Club, Thomas v., 648. Short V. Stotts, 714. Sieber v. Amunson, 88. Sikes, McClees v., 349. Sikes, Simmons v., 612. Silloway v. Brown, 250. Simmons v. Ga. Iron & Coal Co., 439. Simmons v. Hendricks, 732. Simmons v. Sikes, 612. Simon, Townshend v., 685. Simpson, Finley v., 629. Simpson v. Justice, 228. Simpson v. State, 25. Skinner v. Maxwell, 867. Skinner v. White, 418. Slater v. Baker, 412. Slater v. Rawson, 273. Slaughter v. Foust, 285. Small, Palin v., 946. Smathers, Stevens v., 200. Smith V. Allen, 139. Smith V. City of St. Joseph, 511. Smith, Conklin v., 667. Smith V. Foran, 578. Smith V. Portescue, 258. Smith V. Lumber Co., 549. Smith, Meadows v., 668. Smith V. Spooner, 181. Sneeden, Harriss v. 846. Snider v. Newell, 531. Snigge V. Shirton, 212. Somerset v. Cookson, 608. So Relle v. Telegraph Co., 403. Soule, Sprague v., 828. Southerland v. Harper, 777. Southerland v. Jones, 203. Sowell V. Barrett, 297. Spooner, Smith v., 181. Sprague v. Soule, 828. Squier v. Gale, 792. Staniland, Parker v., 246. State, Andress v., 841. State, Bain v., 162. State V. Cannady, 103. State V. Craton, 17. State V. Davis, 38. State, Elder, pros. v. Dist. Med. Soc, 833. State, Ferguson v., 920. State V. Goode, 39. State, Green v., 930. State V. Harman, 19. State V. Herndon, 453. State, Hooker v., 908. State V. Hough, 13. State V. Lunsford, 456. State V. Lyman, 374. State, Miller v., 45. State V. Monroe, 407. State V. Gates, 97. State V. Parrott, 74. State V. Pate, 96. State V. Pat. & Ham. Turnpike Co., 802. State V. Ramsey, 20. State V. Ross, 67. State, Simpson v., 25. State V. Steele, 34. State V. Stlgall, 520. State V. Taylor, 42. State V. Whitaker, 785. T.^LE OF CASES. [the figures kefeb to the pages.] state, Whittem v., 98. State V. Williams, 390. State, Wilson v., 947. State Treas., La Grange v., 790. Stearns v. Washburn, 669. Steele, State v.,- 34. Stepp, Dougherty v., 236. Stevens v. Rose, 201. Stevens v. Smathers, 200. Stevenson v. Austin, 976. Stewart, Bryan v., 457. Stewart v. Cooley, 479. Stewart, Frink v., 851. Stigall, State v., 520. Stinson, Brooks v., 8. Stokes V. Fraley 256. Stone, Kendall v., 179. Story V. Atkins, 676. Story V. Hammond, 406. Stotts, Short v., 714. Stout V. Wren, 389. Strayhorn v. Blalock, 928. Stryker, Parsell v., 315. Stryker, Sergeant v., 662. Strong, Richardson v., 653. Stuard v. Porter, 971. Sugg, Wood v., 729. Swain, Brame v., 317. Swan, Mayor of Norwich v., 248. Sweeney v. Baker 428. T. Talbot, Vankirk v., 684. Tarble's Case, 451. Tasburgh v. Day, 178. Tayloe v. Bond, 716. Taylor v. Alexander, 483. Taylor, Allen v., 315. Taylor v. Moffatt, 460. Taylor, Parker v., 188. Taylor, State v., 42. Taylor, Webb v., 606. Teel, Benjamin v., 721. Telegraph Co., Jackson v., 478. Telegraph Co., So Relle v., 403. Tenn. Manfg. Co. v. James, 546. Theus, Harris v., 710. Thomas v. Shooting Club, 648. Thomas, Shooting Club v., 232. Thompson v. Cox, 761. Thompson v. Deans, 314. Thompson, Moore v., 898. Thomson, Gregory v., 632. Thorn v. Williams, 901. Thorne, Little v., 718. Tillett V. Aydlett, 760. Tillman, Carruthers v., 232. Titus V. Scantling, 90. Tompkins v. Willshear, 341. Toms V. Warson, 857. Towne, Jones v., 71. Townshend v. Simon, 685. Trask, Watson Y., 421. Tredwell v. Reddick, 244. Trumbull, Wall v., 481. Tuberville v. Savage, 384. Tucker, Sharon v., 821. Tufts, Hume v., 623. Tuite V. Miller, 285. Turner, Brafield v., 466. Turner, Cole v., 391. Turner v. Lowe, 160. Turner v. Mebone, 200. Tyler v. Hammersley, 816. Van Pelt v. McGraw, 350. Vane v. Barnard, 209. Vankirk v. Talbot, 684. Vass V. Arrington, 764. Veeder, Schuer v., 620. Vegelahn v. Guntner, 586. Vernoy, Etheridge v., 271. Vick v. Plournoy, 939. Vick V. Pope, 967. Vincent, Shaw v., 313. Villers v. Monsley, 415. W. Wagner, Gragg v., 275. Waldron, Jenkins v., 487. Wales v. Whitney, 446. Walker, Winslow v., 7. Wall V. Trumbull, 481. Wallace, McCombs v., 169. Wallace, Weaver v., 700. Ward, Jarman v., 850. Ward, Lassiter v., 690. Ward V. Ward, 965. Ware v. Nisbet, 838. Warfield, Ex parte, 375. Warrick, FuUerton v., 386. Warson, Toms v., 857. Washburn, Miller v., 865. Washburn v. Payne, 895. Washburn, Stearns v., 669. Waterson & Kirk, Railroad (C. H. & D.) v., 255. Watkins, Ex parte, 444, Watson V. Trask, 421. Watts, Herman v., 742. Weaver v. Wallace, 700. Webb V. Chambres, 657. Webb V. Taylor, 606. Weber, Bishop v., 407. Webster v. Sharpe, 925. Wehrman v. Conklin, 182. Wellington v. Downer Ker. Oil Co., 409. TABLE OP CASES. XXVll [the figukes bbeeb to the pages.' "Welsh, "Wilt v., 333. "Wesson v. Railroad, 592. "West, Doe v., 140. "West V. Ratledge, 911. "Wharton v. Moore, 176. "Wheatley, Kennedy v., 242. "Wheeler v. Cobb, 932, "Wheeler, "Wise v., 143. "Whissenhunt v. Jones, 147. Whitcher, Newell v., 385. "White, Ashby v., 485. "White "Water Canal Co., Comrs. v., 112. "White V. Cooper, 148. "White V. Bley, 328. "White V. Fort, 113. "White V. Griffin, 619. "White V. Morris, 957. "White, Skinner v., 418. "Whitaker, State v., 785. "Whitehead v. Hale, 868. "Whitney, "Wales v., 446. "Whittem v. State, 98. "Wibright v. "Wise, 915. "Wilcox, Barkley v., 83. "Wilcox, Neal v., 620. "Williams v. Bankhead, 974. "Williams, Boyce v., 609. "Williams, Heath v., 82. "Williams, Marsh v., 856. Williams v. Railroad, 331, 540. "Williams v. Shaw, 280. Williams, State v., 390. Williams, Thorn v., 901. Willshear, Tompkins v., 341. Wilson V. Brumfield, 313. Wilson V. Hughes, 605. Wilson V. Moore, 926. Wilson V. Murphey, 346. Wilson, Sackett v., 965. Wilson, Setzar v., 705. Wilson V. State, 947. Wilt V. Welsh, 333. Wilton V. Railroad (Middlesex), 539. Winslow V. Walker, 7. Winter, Goodman v., 744. Wise V. "Wheeler, 143. Wise, Wibright v., 915. Wiseman v. Witherow, 898. Witherow, Wiseman v., 898. Wolcott, Diggs v., 815. Womble v. Leach, 617. Wood V. Graves, 470. Wood V. Sugg, 729. Wooten, Hancock v., 767. Worth V. Cox, 646. Wren, Stout v., 389. Wyatt, Chalk v., 261. Young V. Construction Co., 567. INTRODUCTION CHAPTER 1. REMEDIES WITHOUT JUDICIAL -PROCEEDINGS— Sec. 1. Reme- dies BY Operation of Law. — (a) Remitter. If the true owner of the fee he dissiezed and barred of his right of entry and thereafter the posses- sion, or right of possession, devolves upon him by operation of law, un- der some defective title, this possession or right of possession under the defective title is, by mere operation of law, merged, so to speak, into his former good title — thus restoring his impaired title to its pristine perfection. This is brought about by the spontaneous and instantaneous operation of law without the participation or consent, even, of the owner. Mutatis mutandis, if one be in the wrongful possession of land and the true title to the freehold devolve upon him by operation of law, his wrongful possession is merged, as it were, into his freehold title. These automatic workings of the law are called Remitter. Remitter only operates when the title or possession or right of possession devolves by operation of law, and never when such rights or circumstances arise by act of the party. (1). Somewhat analogous to remitter is the case of the true owner of a chattel whose right to recover the possession thereof by legal process has become barred by the statute of limitations. Should he, even by his own act, gain possession of such chattel, such possession merges into and again perfects his title. (2). (b) Retainer, lAen, etc. As no one can sue himself, an executor or administrator would have been at a great disadvantage under the old law, which gave priority to those cred- itors of a decedent who first brought an action against his personal rep- resentative. To obviate such an injustice the law gave to claims of the per- sonal representative, against his decedent, priority over claims of other creditors of the same class. This priority is called the right of Retainer, be- cause the personal representative may retain the amount due to him- self before paying anything to the other creditors whose claims are of no higher dignity than his own. (2) Stoppage in Traxsitxt.' The ven- dor of a chattel has a right to retain possession thereof until the price is paid — he has a vendor's lien for the price. This is a common-law lien which exists only so long as the vendor retains possession of the chattel — parting with the possession discharges the lien. As a delivery to a common carrier is, ordinarily, a delivery to the consignee, it follows that such a delivery by the vendor is a delivery to the vendee and an extinguishment of the vendor's lien. But, by the common law, if such vendor, after delivery to the carrier, discovers that the vendee is in- solvent, he may forbid the carrier's delivering the chattel to the ven- dee and may retake it into his own possession. This is called the right of Stoppage in Transitu which is, in effect, a right to revoke the de- livery to the vendee and thereby to revive the vendor's lien conferred by the law. (3). In a number of instances the common law and the statutes of I the several states confer upon a creditor who has possession of the chattels of his debtor, the right to retain such possession until his claim is paid. In such cases the creditor is given a Lien upon such chattels. This lien is waived and lost by voluntarily parting with such possession. (7). (c) Removal of Trade Fixtures. A tenant may re- move trade fixtures provided he do so during his term. (S). Sec. 2. Rejiedies by the Act op the Party In.iurbi>. — (a) Self-defense. One may so far "take the law into his own hands" as to defend person, XXX . INTRODUCTION. spouse, children, servants and other dependents, master, dwelling, lands, and chattels. This is the law of Self-defense. This law justifies an act, not excessive in its force, done in the honest and reasonable belief of immediate danger. If under such circumstances, one injure the as- sailant, no liability, civil or criminal, follows. The right exists under all circumstances (except where the assailant is acting in the lawful exercise of his rights, see note at 13 and case at 17) ; but nice questions arise as to the degree of force that may be lawfully exerted in the exer- cise of such right. The degree of force varies with the nature of the act resisted and the circumstances attending it. If one be assaulted in Ms dwelling he is not required to retreat, but may use such means as -are necessary to repel the assailant from his house or to prevent a forcible entering into the house, even to the taking of life. But life must not be taken if the assailant can be otherwise arrested or re- pelled. If the attack be in itself felonious and of a violent character, the defense of self, family, and property may be as complete as is neces- sary. Such felonies as murder, rape, burglary, robbery, and the like, may be repelled by force, and no retreat is required, but, per contra, the assailant may be pursued until freedom from all danger is secured — killing the assailant in so doing is justified. If the attack be not felonious in design, the person attacked must do all that is reasonably within his power to avoid the necessity of extreme resistance — by re- treating to the wall if to retreat be safe. In Wisconsin the common- law rule as to retreating to the wall — the "flight rule"- — is no longer the law. In all cases of violent assault, if the circumstances be such as to naturally induce the belief that the assailant intended to do, and had the power to do, great bodily harm, or to kill, the person assaulted, if not himself legally at fault, may kill his adversary if necessary. Self- defense is no excuse for acts done in resisting and openly defying an oflicer in the lawful exercise of his duties. (9-15). One may be the aggressor — may commit an assault — in the defense of spouse, child, de- pendents, etc., but an assault in the first instance to defend the posses- sion of chattels, etc., is not justifiable, for in such cases the doctrine of molliter manus applies. (15). A person is not required to stand quietly and suffer himself or his horse to be bitten by a dog, nor to give the dog "a fair fight." The dog may be killed if there be reasonable ground to suppose that such a course is necessary to prevent Its biting the man or his horse. But to pursue and kill the dog after all danger is over, is not lawful. (16). A husband may "protect his honor." That is, he may use such force as is necessary to take his wife from one in whose company she is, if there be reasonable ground to apprehend that his dishonor will be the result of his failure to exert such right. If the husband find one in the act of adultery with his wife and kill him on the spot, it is only man- slaughter; and so it is though "the situation be not the very act, but severely approximate thereto." (19). Considerable latitude is allowed one in using force in resisting an unlawful restraint of his liberty. (20). Urgent necessity justifies many entries upon land and interfer- ences with personal property that would, but for such excuse, have been trespasses. This doctrine applies with special force when human life is in danger. If the owner of premises unduly resists the exercise of the rights or privileges growing out of this doctrine and damages result therefrom, he will be liable therefor. He may not lawfully carry to such extremes his right to defend his premises from intruders (23 and see 77). The defense of premises from simple trespasses will not justify the infliction of serious bodily harm by means of spring guns, etc. (25); or ferocious dogs (31). But one may guard his premises with dogs who are let loose only at night and at such part of the pi'em- ises as no one may be reasonably expected to enter at night for any lawful purpose (33). The proprietor of a hotel may refuse admission to his premises to all persons other than those entitled to enter as proper guests and those having legitimate business with a guest. Per- sons simply desirous to solicit the patronage of the guests may be ex- INTKODUCTION. XXXI eluded, and discrimination may be lawfully made in favor of some per- sons soliciting such patronage. Persons intruding upon such premises may he forcibly excluded and put off of the premises should they refuse to leave after being requested to do so — ^after the molliter manus rule has proven ineffectual, but no more force must be used than is neces- sary. (34). As the public authorities have only an easement in a public road, the fee remaining in the abutting owners, and as the gen- eral public have only the right to pass along the road, , such an owner may lawfully use force to drive off an armed and boisterous trespasser who is using indecent language in the public road but in front of his dwelling. The rule of molliter manus does not apply to one who is acting in belligerent defiance. (38). A man's house is his castle to which he may, with force, refuse admittance to all, and from which he may exclude all who refuse to leave. But officers charged with the execution of criminal process do not come within this rule, though those charged with the execution of civil process do. Whether a permit or license to enter for the purpose of siezing chattels leased, or mort- gaged, or conditionally sold, can be revoked and the entry of such li- censee forcibly resisted, and whether after entry he may be forcibly evicted, are questions on which the courts differ. (38). There is a force m law, as where any entry is made upon the premises of another without permission, and a force in fact, as in burglary, or breaking open a door or gate. If there be only force in law, the trespasser must be requested to leave before hands can be laid on him to evict him, but if there be force in fact it is lawful to oppose force to force and no re- quest to leave need be made before resorting to force. So an attempt by force in fact to take chattels from one's possession may be resisted with force without any previous request that the aggressor desist. (41)-. If a trespasser or unwelcome visitor invade one's dwelling with- out force, he must be requested to leave before resorting to force ta eject him. If he does not accede to such request, the owner should lay hands gently upon him, and if he still refuses, such force may be used as is necessary to evict him — care being taken to use no more force than is necessary. If the intruder defiantly stands his ground (armed with a deadly weapon?) the doctrine of molliter manus does not apply, but force may be resorted to at once. (42). At common law one was permitted to capture and confine domestic animals trespassing on his premises. This was called the right of distress damage feasant. Some- what similar remedies are allowed by statute in practically all of the- states. (43). It seems that all may kill a trespassing dog that is known to be an egg-sucking and sheep-killing dog — for such an animal is a nuisance and may be destroyed as such. The civil liability of one who kills another's dog, as a nuisance, does not necessarily depend upon whether the dog was in the very act of killing sheep, or the like, but whether the killing of the dog was a fair act of prudence — reasonable regard being had to the relative values of the dog and of the property to protect which the killing was done. (45). Trespassing horses, cattle, etc., may be driven from one's premises and, if this be properly done, no liability results from such driving; but if savage and powerful dogs be set upon them and they be injured in consequence, the owner may re- cover damages because of the excessive force used. The fact that no injury to the animal was intended, is no defense, for even a lunatic is liable for his trespass against the person or property of another. (48). A valuable domestic animal — such as a high-bred boar^may not be killed for past acts of trespass damage feasant; because that is to take vengeance, and "vengeance is mine, saith the Lord; " nor can such animal be killed to prevent anticipated mischief, for that may never happen; nor is the killing justifiable because the animal is difficult to capture when such attempt is made while he is in the act of doing damage. (49). fl}) Recaption of property. One may defend his possession and title to chattels. If A goes upon B's land and undertakes to carry- away B's chattels, B may interfere to stop it and use sufficient force for that purpose. But he must not assault A unless resisted, and he must XXXll INTRODUCTION. not use unnecessary violence. (50). If A be lawfully in possession of B's chattels — as if A distrain B's cattle damage feasant — A may forcibly resist B's attempt to carry off such cattle. If one be in the actual ad- verse possession of the chattels of another, the true owner cannot law- fully retake such chattels by force. His attempt so to do may be re- sisted with force. (52). If A and B be together, and A obtain posses- sion of B's money or chattels by force or fraud. B may regain his momen- tarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dangerous weapon. It has been held that B would have the same right even after a considerable time had elapsed between the wrongful taking and the recaption. (53). If A's chattels be stolen or otherwise illegally taken from him, he may pursue and retake them wherever they be found unless they be deposited upon the lands of one not a participant in the taking — ^and even in that case he may enter such premises and retake his goods in case of theft and hot pursuit. So, from necessity, one whose cattle escape upon the land of another may follow and drive them back, unless the escape of the cattle occurred under such circumstances as to be Itself a trespass. In many instances one has an implied license to enter upon another's prem- ises to take chattels — e. g. permission to keep chattels on another's premises involves a license to enter for their removal; so of a sale of chattels which are at the time on the seller's land; but no such license arises if the seller is to deliver the goods elsewhere. The mere fact that A's chattels are on B's land, does not justify A's entry to take them, The bailor has no right to enter the bailee's premises to take the thing bailed, without the bailee's permission; and so it is with mortgaged chattels left on the premises and in the possession of the mortgagor, in the absence of some special provision to that effect in the mortgage. It has been held that a mortgage of chattels which are on the premises of the mortgagor when the mortgage is executed, is a sale of chattels then being on the premises of the seller, which sale carries with it the implied license to enter the premises and take the chattels; but that ■such license would not extend to other premises to which such chattels might be subsequently removed. (55). (c) Entry. An entry that will revest a divested estate must be an open entry under claim of right, so as to give notoriety to the matter. (59). An entry effected by unlaw- ful force and breach of the peace is effectual as far as the title is concerned, and a plea of liberum tenementum is good against any civil action for such invasion — fieri non debet sed factum valet. (60). An entry on part of a tract of land is effectual as to all of it except such portion as may be in the actual possession of an adverse claimant. If the true owner enter peaceably he cannot be treated as a trespasser; nor can one in wrongful possession maintain an action against him as such. If the true owner enter upon land held adversely the legal possession is in him notwithstanding the presence of the ad- verse claimant, for where two are on land the law adjudges the pos- session to be in him who has the title. (60). According to some au- thorities, a tenant at sufferance may be forcibly evicted by the land- lord; and, in such event, if no more force than necessary be used, no civil action will lie against such landlord, though he may be liable to indictment for a forcible entry (62): but others hold that such a rul- ing, while doubtless correct as the law stood in the semi-barbarous period of feudal tenures, has no place in the law of this civilized period, and that one so forcibly evicted is entitled to nominal damages, at least, even against the true owner, for the trespass; to actual damages for injury done to his person or goods; and to exemplary damages it the trespass be committed in a wanton and reckless manner. (66, and compare 67). Mere occupants of premises — such as domestic servants, college professors, nurses, etc., as distinguished from tenants who have an estate in the premises — may be evicted by force, care being taken not to commit a breach of the peace in so doing. (70). The owner of a pew in a church may so far exercise his prerogatives — as a member of the church militant — as to forcibly evict, in person or by the aid of the INTRODUCTION. iLXXUl mercenary forces of the police, another worshipper who has taken a seat in such pew and refuses to vacate when requested so to do. (71). (d) Abatement of Nuisance. Although the usual course is to redress a public nuisance by indictment, yet every one may remove such nuisance if personally incommoded thereby. (73). A bridge across a navigable stream, unless sanctioned by the government in the legitimate exercise of its authority, is such a nuisance as may be removed by any person who is impeded thereby in his rights of navigation. The same is true as to obstructions placed in public roads. (73-74). But the unlawful sale of liquor in a store, while it may be a public nuisance, is not to be abated by the zealous opponents of such traffic — because they are not so directly injured thereby as to come within the rule of law which per- mits individuals to abate public nuisances. An individual may physi- cally abate a private nuisance, injurious to himself, when he could also bring an action; and he may remove a public nuisance when it obstructs his individual right: but strangers, who are not obstructed in their in- dividual rights, have no such power as to public nuisances. This is a distinction sometimes overlooked in judicial opinions. The right to abate public nuisances is never entrusted to individuals by way of vindicating the puilic right, but solely for the relief of the person whose right is obstructed by such nuisance. (75). Somewhat allied to the subject of abating a public nuisance, is the right which the law gives a traveller to go across private lands when the public road is so ob- structed as to make such a course a necessity. Such right is not to be exercised for convenience merely, nor when other public ways could have been selected and the obstruction avoided. It is confined to cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes. (77, and see 23). The congregating of barking and pugnacious dogs near one's premises, is such a nuisance as he may abate by killing the dogs, if such a course be reasonable or necessary under the circumstances. (80). One may abate a private nuisance as stated supra, and for the purpose of so doing he may enter the premises of the one who maintains such nuisance after failing to obtain relief by other means. (81-82). So one may cut off — up to Ms line, but no further — the limbs and roots of trees which project into and above his soil. (82). It is said to be the rule of the common law that a lower proprietor may so raise the level of his land as to pond back rain water upon the upper proprietor, while the civil laio forces the lower proprietor to submit to the flow of such water according to the natural shape of the earth. Some courts adopt the one law and some the other. (83). (e) Distress for Rent. This was a species of self-help afforded landlords by the common law. It permitted them to seize the chattels of the tenant and hold them until the rent was paid — a proceeding in which the landlord is a judge in his own case, contrary to the solid maxim of common law, says Lord Coke; and a power which is tyrannical and may be made an engine of oppression almost irreconcilable with the spirit of American laws and institutions, says Judge Stevens. Not all chattels could be distrained for rent — for fixtures, growing crops, perish- able articles such as milk, sheaves and shocks of grain, goods held by the tenant as bailee to be worked on, beasts of the plow, implements of husbandry, and instruments of a man's trade were exempt. (87). Sec. 3. By Agreement of Parties, (a) Accord and Satisfaction. An accord is a satisfaction agreed upon between the party injuring and th& party injured, which, when performed, is a bar to all actions upon that account. It must be advantageous to the creditor and he must receive an actual benefit from it; it must be accepted as a satisfaction; and it must be followed by the performance of everything which the party agreed to do. An accord not followed by a satisfaction is no bar. (89). Cb) Arbitration and Award. This is a method of settling disputes out of court by submitting the matter in controversy to persons selected by the contending parties or under their sanction and agreeing to abide by their judgment, which is called an award. This remedy was of common- law origin. Originally persons, though no legal proceedings were pend- XXXIV, INTRODUCTION. ing between them, were permitted to submit any matter of dispute to arbitrators and the award was enforced by action on the award or on the bond given for its performance. If an action was pending between the parties and they agreed to submit the controversy to arbitrators, the award was made a rule of court and its performance enforced by at- tachment. By 9 & 10 Wm. 3 an award, made in a controversy about which no action was pending, could also be made a rule of court; but this statute did not abolish the other remedy of action upon the bond to abide by the award — it simply gave an additional remedy. (90). The courts became jealous of the arbitrators, and ruled that an agreement to refer all matters of dispute to arbitrators, where no action was pending, was void; because it tended to oust the jurisdiction of the courts. The conclusion finally reached is: An agreement to arbitrate, which has the effect to prevent the suffering party from coming into a court — or, in other words, which ousts the courts of their jurisdiction — cannot be sup- ported: but an agreement that no action shall be brought until arbitra- tors shall have settled the amount of damages, or the time of paying it, or any matters of that kind which do not go to the root of the action, are valid. (91-93). There is a marked distinction between a refer- ence under the Code practice and a submission to arbitration. A refer- ence is simply a method of trying a pending case before a referee in- stead of before the court and a jury. The referee must report the testi- mony, find the facts and the law, and report his conclusions to the court for approval or disapproval: but arbitrators need not find the facts nor need they even follow the law, for they are a law unto them- selves. (94). CHAPTER II. REMEDIES BY JUDICIAL PROCEEDINGS.— Sec. 1. Ceimixal and Civil Phoceedixqs Distixouished. Actions are either civil or criminal. If the proceeding is by indictment it is criminal; when by acUon or other mode, it is civil. All criminal proceedings are prosecuted in the name of the state: but all proceedings prosecuted in the name of the state are not criminal; for the state may prosecute a civil action or authorize individuals to prosecute such actions in its name — "State ex rel." A bastardy proceeding is a mere police regdlation intended to secure the public from the expense of rearing a child and, hence, is not a criminal action or proceeding. (96). A peace warrant is a preven- tive remedy to keep down an impending and threatened breach of the peace, etc. It is per se a criminal proceeding. (97). Proceedings to punish one for contempt of court are criminal in their nature and gov- erned by the principles applicable to criminal proceedings. When a court commits a person for contempt the adjudication is a conviction and the consequent commitment is an execution. Contempt of court is a specific criminal offense. Its punishment is sometimes by indictment and sometimes by summary proceedings. Some courts draw a distinc- tion between proceedings to punish for criminal contempt and pro- ceedings as for contempt to enforce civil remedies; but this distinction is rather for the regulation of the practice than for changing the nature of the proceeding to punish for contempt. (98-102). One cannot be forced to give evidence against himself in such proceedings. (101). The court may submit a disputed fact to a jury in proceedings for con- tempt, but the respondent has no right to a jury trial. (102). When a criminal prosecution is gotten up upon the initiative of an individual and such prosecution is found by the court to be frivolous and malici- ous, it has long been the practice to mark the instigator as prosecutor and to tax him with the costs. Such summary proceedings are crimi- nal in their nature, yet, like contempt proceedings, they violate no funda- mental right of the individual who is made to suffer thereby. (103). An action to collect a penalty — whether it be at the suit of the state or qui tarn — is as much a civil action as an action for money had and re- INTRODUCTION. XXXV •ceived. Penal actions have never been put under the head of criminal law. (106-108). The state's counsel cannot enter a nol. pros, to a qui tarn action, except for its part of the penalty; but the legislature may repeal the statute imposing the penalty and thereby destroy the in- former's right to recover. However, after judgment has been rendered, the legislature cannot, by a repeal of the statute or otherwise, take away Irom the informer his share of the penalty- — for the judgment is a vested right of property. (110). Sec. 2. Wi-iex Both Criminal and Civil Actions Lie. Meeqer. Un- der the old law, in gross and atrocious crimes the private wrong was .swallowed up in the public wrong — that is, all civil remedy was sus- pended until the indictment for the crime had been disposed of. But in -crimes of an inferior nature the private injury could be redressed by civil action regardless of the criminal prosecution. (111). In the case ■of a public nuisance any person who' sustained special damage could sue for the same, and an indictment would lie also. In cases in which the civil remedy was suspended until the criminal indictment was disposed of, the civil action of the person injured could be maintained as soon as the criminal prosecution was disposed of — whether by conviction or ac- quittal. The refusal of a grand jury to find a true bill was a sufficient disposition of the criminal prosecution within this rule. (113). Sec. 3. Change of Remedy by Statute. A state may regulate at pleas- ure the mode of proceeding in its courts, and this it may do in actions ex contractu as well as ex delicto; but it cannot affect pre-existing con- tracts by so changing the remedy as to destroy all remedy or to burden the proceedings with new conditions and restrictions to such an extent as to make the remedy hardly worth pursuing. Such radical changes in the remedy violate the constitutional provision forbidding a state to im- pair the obligation of contracts. (115). CHAPTER III. REMEDIES CONCERNING REAL ESTATE.— Sec. 1. Writs of En- try, Assize and Right, and Sec. 2. E.jectment Prior to the Code Prac- tice. Under the very ancient English law, the remedies for the recov- ery of a freehold interest in land were: Writ of Entry, Writ of Assize, and Writ of Right. The writs of Entry and Assize were possessory ac tions. in which only the right of possession was adjudicated; but by the Writ of Right the title was determined. At this period of the law the only remedy of lessee for years in case he was wrongfully ousted by the lessor, was by writ of covenant on the breach of contract, whereby he was enabled to recover his term as well as damages; but if dispossessed liy a stranger, his remfedy was by a writ of ejectione firmae, which was a mere personal action of trespass, whereby he was enabled to recover damages only and not the possession of the land. Later on, the lessee was given a more complete remedy by the writ of quare ejecit infra terminum, whereby he was enabled to recover both the possession of the land and damages from any person whomsoever for ousting him. These ancient remedies were all supplanted by the action of Ejectment, which "is an ingenious fiction for the trial of titles to the possession of land. In form, it is a trick between two to dispossess a third by a sham suit and judgment. The artifice would be criminal unless the court con- verted it into a fair trial with the proper party." In this action the plaintiff was John Doe upon the demise of the real plaintiff, and the de- fendant was Richard Roe. The action was commenced by filing a dec- laration setting forth that the real plaintiff had demised to John Doe certain premises for a term of years; that by virtue of this demise John Doe had entered and was possessed of the demised premises; and that Richard Roe with force and arms had ejected John Doe from such prem- ises. Upon filing this declaration, the real plaintiff was required to :serve a 'notice upon the person in possession of the premises to the ef- XXXVl INTRODUCTION. feet that such declaration had been filed and that he must appear in the action and defend his rights, otherwise judgment would he entered against Richard Roe and he, the person in possession, would he turned out of possession. The real plaintiff was required to give a bond, pay- able to the clerk of the court, conditioned for the prosecution of the ac- tion with effect, or otherwise to pay all costs and damages awarded on failure so to do. Should the party in possession desire to defend the action he was required to confess the lease, entry, and ouster set forth in the declaration, and to plead not guilty to the charge of his having forcibly evicted John Doe. This was called the Consent Rule, because- it was entered upon the records of the court that these things had been consented to by the real plaintiff and the real defendant in the action. The only process in the action was the notice above mentioned which was served by the sheriff together with a copy of the declaration. After entering into the consent rule, the real defendant entered a formal plea of not guilty and put himself upon the country. But, before being al- lowed to plead, the real defendant was required to give a bond, payable- to John Doe, conditioned that he should answer the action and abide by the judgment which might be rendered therein. If the plaintiff had a verdict, judgment was rendered against the real defendant that John- Doe recover against him the unexpired term in the lands described in the declaration, together with costs and damages. Upon plaintiff's mo- tion it was also ordered that a writ of possession issue. If the verdict was in favor of the defendant, judgment was rendered in his favor for costs against the real plaintiff and the sureties on his prosecution bond. If judgment were rendered for the plaintiff, as above, he brought a new action against the real defendant for the rents and profits during his. occupancy of the land. Originally the rents and profits were recovered in the action of ejectment, but, in order that that action might not be hampered with this inquiry — which would be labor lost should the plain- tiff fail to obtain a verdict — the practice grew up to enter a verdict for merely nominal damages; leaving the plaintiff to institute a subsequent action for the rents and profits. This subsequent action was called Trespass for Mesne Profits. (119-132). In the action of ejectment the demise to John Doe could not be laid in a dead man, because the lessor of the plaintiff was the real plaintiff in the action and a dead man cannot sue; and for the further reason that the lessor of the plaintiff was required not only to have title at the date- of the demise, but title and right of entry at the commencement of the suit. These a dead person cannot have, for at the death of a man the title passes out of him into his heirs or devisees, or, in case of a chattel interest, into his personal representatives. (132). The action was; commenced when the notice, with a copy of the declaration, was served, and not when the declaration was filed. If the person served with the- notice failed to appear and defend the action, the real plaintiff was re- quired to show that such person was in possession of the land in order to recover any judgment in the action; but if the person notified rfe- fended the action, or if any other person applied to make himself a de- fendant and defended the action, the plaintiff was not required to prove- that the defendant was in possession. (133). Ordinarily the real de- fendant is required to admit Lease, Entry, and Ouster, and this was. called the General Consent Rule; but as one cotenant cannot recover against another, in ejectment, unless an actual ouster be proven, in such cases the defendant applied to the court, upon affidavit, for leave to enter into a Special Rule — by which he was permitted to admit only the lease and entry, hut not the ouster. However, if he denied that the- real plaintiff had any title, he was required to enter into the general consent rule. (138). Before the Code practice was instituted, the plaintiff could not recover upon an equitable title, neither' could the de- fendant set up an equitable title as a defense. (139). The plaintiff had to recover upon the strength of his own title, and not upon the weakness, of his adversary's He was always required to prove a clear legal right of possession, — whether such right was based upon a freehold title, or a INTRDDUCTION. XXXVll chattel interest, or upon a mere right o£ occupancy. It was immaterial how minute his interest, provided it were a legal interest carrying with it the right of possesson. If the defendant could show that the legal right of possession was in some third person, the plaintiff was defeated in the action. But where both plaintiff and defendant claimed title under the same person, neither was allowed to deny that such person had title, unless he could connect himself with a title superior to such common source of title. (140-141). A landlord whose tenant was sued in eject- ment had a right to be made a defendant, either in place of the tenant or jointly with him: save in this instance no third person could become a defendant except by consent of the plaintiff. (143). Under the old law, a landlord let in to defend could make no defense which his tenant could not have made: but a defendant let in iy consent was not restricted to the defenses, of the party actually in possession. Under the Code prac- tice, a landlord is no longer restricted to the defenses to which his ten- ant is confined. (145). In the action of trespass for mesne jirofits the plaintiff recovered up to the time of trial, and not simply to the time the action was com- menced; and so it is in actions to recover real property under the Code practice (but as to this, see note at page 176, which says that the old practice was otherwise). (146-147). As the old action of ejectment was strictly a possessory action, the judgment was not an estoppel in respect to the title and, consequently, the parties could continue to bring ejectment against each other ad infinitum by simply changing the date of the alleged demise. Thus, the party in possession, though success- ful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation courts of equity interfered and closed the controversy by injunction. (148). Sec. 3. Ejectment Under the Code Pbactice. As has been said, under the old practice the right of property in land could only be determined by the writ of right, for the right of possession alone was determined by the writs of entry and assize. A judgment in the writs of entry and assize was conclusive and an estoppel in any subsequent action un- der these writs: but the action of ejectment, which supplanted these an- cient remedies — called real actions — worked no estoppel as to future ac- tions of ejectment. The action of ejectment has in its turn been rele- gated to the historical department of the law, being superseded by a simple action to recover real property under the Code practice. To speak of this action under the Code as an action of ejectment, is simply to use a figure of speech. The Code action combines all that was of any prac- tical good in all of its predecessors — ^for it can be used as a mere pos- sessory action or as an action to try the title to the freehold, at the elec- tion of the plaintiff. In whatever way it is used it works a complete es- toppel quoad the title alleged in the complaint. If the plaintiff allege a mere right of possession, the estoppel extends only to such possession: but if he allege title in fee, or other freehold estate, the estoppel is complete as to such estate. (151-157). While the Code is very liberal in permitting all persons to become parties who are Interested in the subject matter of an action, still it will not permit one who claims title paramount and adverse to both plaintiff and defendant, to come in as a party to an action to recover real estate, unless by consent of the par- ties. A landlord may come in as a matter of right and defend an ac- tion brought against his tenant. (158). The tenant is not permitted to dispute the title of his landlord. Under the old practice a tenant with an equitable title in himself could assert such title by a suit in equity, though he could not set it up as a defense at law. Under the Code practice he may set up such defense in his answer without resort- ing to the circumlocution of a separate action. This right of the tenant to set up an equitable defense is confined within conservat've limits. (160-161). Although neither the United States nor a state can be sued without its permission — except in so far as the 11th amendment applies to a state — still, this doctrine has no application to oflScers and agents of either government who are in possession of and hold real estate by Remedies — d. XXXVlll INTRODUCTION. virtue of their official positions. An action to recover such real estate may, therefore, be maintained against such officials. (162). One co- tenant may sue alone and recover the whole of the common property from one claiming adversely to his cotenants as well as himself, though he prove title to only an undivided interest. This he is allowed to do to protect the rights of his cotenants against trespassers and dis- seisors. If the defendant show title to an interest in the premises, and be npt a mere trespasser or disseisor, one cotenant who sues alone will recover his undivided share; and this he may do though he claim the entire estate instead of his proper undivided share. One cotenant can not maintain an action against another cotenant for the possession, or title and possession, of their undivided land, unless an actual ouster be proven or admitted by the pleadings. (163-166). The action of ejectment would not lie to recover a mere easement: but it would lie to recover the roadbed of a railroad, because the right of way of a railroad stands in a different category from that of an ordinary easement. Whether these principles govern actions to recover real property under the Code is a question not entirely free from difficulty. (166-169. See 11 L. R. A. (N. S.) 129). By statute a summary and in- expensive remedy for ejecting tenants by sufferance is afforded. This remedy Is usually termed a Summary Proceeding in Ejectment, of which justices' courts, or other inferior courts, are given jurisdiction. This remedy Is confined to the eviction of those who are strictly tenants by a demise, and does not extend to such tenants as mortgagors in posses- sion, vendors and vendees in contracts for the sale and purchase of land, and the like. (169-172). In those states in which the mortgagee still has the legal title, he may maintain ejectment, or its successor under the Code, against the mortgagor. (172). An equitable title is suffi- cient in the prosecution or defense of an action to recover real estate. (173-174). Damages and rents and profits up to the time of trial, and not merely up to the commencement of the action, are recovered in the same action that is brought to recover the land, and not by a separate action as under the former practice. (175). Sec. 4. Bettekments. — At common law one who put improvements upon another's land was the absolute loser of the money and labor thus expended, under the maxim cujus est solum, etc. This was so notwith- standing the utmost good faith of him who thus improved another's land thinking, and having every reason so to think, that he was expending his money and labor upon his own land. In the course of time the courts of equity afforded some relief in such cases, though the relief thus given was far from being complete. Now, the matter is fairly adjusted by statute. Such improvements are called Betterments. (176). Sec. 5. Slander of Title. — To make disparaging remarks about an- other's title to real estate, is denominated Slander of Title, by a figure of speech In which the title to land is personified and made subject to many of the rules applicable to personal slander. An action lies to re- cover damages for such slander; but to maintain such an action it is essential to establish: (1) The falsity of the words published or spoken; ('2) the malicious intent with which they were uttered; and (3) that actual pecuniary loss or injury was suffered therefrom — ^which loss or injury must be the natural and legal consequence of the words uttered. These things must be alleged in the complaint and proved at the trial. (178-182). Sec. 6. Removal of Cloud upon Title, and Quieting Title. — With the exception of the action for slander of title, the common law afforded no remedy to one in possession of land, should another claim a title to, interest in, or charge upon, it. While he might recover damages for the slander of his title if he could prove an actual loss in consequence, such action could not be maintained against one who set up a bona fide claim, because of the absence of malice. Equity affords a remedy by permitting the person in possession to file a bill to quiet the title or to remove a cloud upon the title. To maintain such a suit, a complainant must show: (1) That he Is in possession of the property; (2) that he has INTRODUCTION. XXXIX established his title by successive judgments in his favor in repeated actions of ejectment between himself and the defendant. Upon these facts appearing, the court will grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. This practice has proved so beneficial that in many of the states statutes have been passed affording a like remedy in all cases where the party in possession, and sometimes when he is out of possession, seeks to clear up his title and remove any cloud caused by an outstanding deed or lien which he claims to be invalid, and which is a menace to his peaceable occupation of the land, or an obstacle to its sale. The statu- tory remedy is generally broader and, consequently, more effectual than that afforded by courts of equity. Care must be taken, in seeking such relief, that the plaintiff do not allege such a state of facts as to show that his fears with regard to his title are utterly groundless and idle, for the law has no remedy for hysterics. (182^186). Sec. 7. Confusion of Boundaries and Possession. — When the boundary line between two adjacent land owners was once plain, but afterwards became confused by reason of the misconduct of one of the parties, or when some relation between the parties makes it the duty of one of them to preserve the landmarks and they have become confused by the neglect or fraud of the one charged with that duty, a remedy is af- forded In equity which is called Confusion of Boundaries. This relief consists in declaring the right of the complainant and in directing a commission to go upon the land and mark the boundary line. (186). In North Carolina, for nearly a century and a half there have existed statutes, called Processioning Acts, by which it has been attempted to afford a cheap and summary remedy for establishing boundaries. After running the gauntlet of adverse judicial construction and legislative amendment, this remedy has at last developed into a special proceeding of practical utility — it "is now, and will remain, a cheap and speedy method of settling a boundary, where only the boundary is in question, and should be encouraged." (188). [But land owners should remem- ber that "the cheapest is not always the best" and that "haste makes waste,"] Sec. 8. Remedies Relating to Things Severed From the Realty. — When the true owner of land recovers possession thereof from one in adverse possession under a claim of right, all unsevered buildings, fix- tures, fructus naturales and industriales, pass to him with the land; but not so with things which have been severed, though they be still on the premises. Neither can such true owner maintain trover or replevin against such adverse occupant (or a trespasser or third person, says Pearson, C. J.), or his vendee, for such severed property. His remedy is an action for damages and for mesne profits. (190). But for things wrongfully severed by one rightfully in possession — as by a particular tenant — the reversioner or remainderman may maintain trover or replevin; that Is, he may recover damages for the conversion of the thing severed, or may recover the thing itself, even though it be con- verted into something else — as timber into shingles: provided the change be not too radical — as timber into a boat or house. (192). A mort- gagee cannot maintain trover against the vendee of land upon which the mortgagor has built a house partly out of material from a house re- moved from the mortgaged premises. The mortgagor alone is liable for the tortious removal of the house from the mortgaged premises. (195). But if a house be removed by one in possession of land under a contract of purchase and such house be permanently fixed to the free- hold of a third person — one not in privity with the vendor of the land — the vendor may recover the house in replevin. (197). If a house, de- tached from land and in process of removal, be tortiously taken by one who thereafter fixes it permanently upon land which he subsequently sells to a bona fide purchaser without notice, the former owner of the house may recover it in replevin. To constitute a chattel an immovable fixture. It must be attached to the land by the owner of such chattel. (198). That a house may be recovered in replevin after being perman- xi INTRODUCTION. entJy fixed to other lands, may be a doubtful question. That It may be so recovered after removal to other land but before being permanently attachai thereto, seems to admit of no doubt. (200). Trover will lie for a house torn down and removed from mortgaged land and rebuilt upon the land of a third person who tuys imth notice of the facts. The mortgagor's recovery in such action will be the value of the removed house. (200). [It may not be improper to say that the law gorverning the remedies for the wrongful severance of things pertaining to realty is not in a perfectly satisfactory condition. Bach of the various courts and writers that have undertaken to determine or elucidate the subject feels confident of right and accuracy — upon the same principle that every crow thinks its offspring the whitest. The cases selected seem to the editors to be a fair and practical presentation of the law — and further these deponents say not.] Sec. 9. Waste. — Originally, the only remedy for waste was at law: against the holder of legal particular estates at the suit of the rever- sioner or remainderman in fee or in tail; and only single damages could be recovered except in the case of guardian in chivalry who forfeited his guardianship. The remedy was extended against all particular ten- ants by the statutes of Marlbridge and Gloucester. The statute of Glou- cester permitted the recovery of treble damages and also the place act- ually wasted. By statute Westminster 2 a remedy for waste was given to joint tenants and tenants in common against their cotenants. Of course no injunction issued from a court of law: but, while an action to recover land was pending, the law courts issued a writ of estrepement pendente placito commanding the sheriff to put a stop to all waste dur- ing the pendency of the action; and, after judgment was rendered in any real action and before possession was delivered by the sheriff, a writ of estrepement was issued to the sheriff commanding him to stop any waste prior to the execution of the writ of possession. Originally the remedy at law for waste was the old writ of waste; but that fell into disuse and was finally abolished by 3 and 4 William IV. This old writ was used to a limited extent In this country, but was superseded by an action on the case in the nature of waste, for the recovery of damages only, and by the equitable remedy of injunction. The action on the case could be maintained not only by a remainderman or rever- sioner In fee or In tail, but also by remaindermen and reversioners for life or years, and would lie not only against a particular tenant but against a stranger who committed depredations. The remedy in equity was, and is, an injunction to stay future waste and a mandatory injunc- tion not only to stay future waste, but to force the defendant to repair injuries theretofore committed, where practicable to do so. Equity goes still further and, under the doctrine of Equitable Waste, will forbid a tenant who holds without impeachment of waste, or one holding a de- feasible fee, to commit acts which constitute "a fraud upon the power to commit waste" — acts of trifling profit to the tenant, but of irreparable damage to the estate in expectancy. The holder of a contingent ex- pectant estate cannot recover damages for waste already committed, but he may have protection by injunction. Cotenants are afforded appro- priate remedies both at law and in equity against waste. As equity usually affords complete relief in a matter before it, it will decree an account for waste done, when it orders an injunction to stay waste. (201-209). Sec. 10. Forcible Entoy and Detainee. — As has been stated in Sec. 2 (e), whether or not the landlord may forcibly enter the premises and eject a tenant at sufferance therefrom. Is a question on which the courts do not agree. By statute, in England and in some of the states, a sum- mary and extraordinary remedy is afforded one whose land is taken or detained from him by force and violence. To constitute a forcible en- try or detainer, a mere technical trespass, which constitutes force In law, Is not sufiicient: there must be actual violence or some demonstra- tion calculated to create alarm, if not terror, in ordinary minds. It is not necessary that there should be any assault or battery. (210). For- INTEODUCTION. xli cible Detainer is a separate and distinct offense from Forcible Entry and Detainer. The distinction consists in the laivfulness or unlawful- ness of the entry. Where the entry is unlaioful, whether forcible or not, and the subsequent holding is forcible and tortious, the offense committed is Forcible Entry and Detainer. But where the original entry is laivful and the subsequent holding is forcible and tortious, then the offense is Forcible Detainer. (210). It has been held that a ten- ant at sufferance who forcibly resists the entry of his landlord com- mits a "forcible detainment." (212-213). Sec. 11. Nuisance. — The doctrine of nuisance is as old as the com- mon law itself. There are two kinds of nuisances: (1) Common nui- sance, which affects all the people and is an offense against the state punishable by indictment; and for which one who suffers damage pe- culiar in kind or degree beyond what is common to himself and others, may recover damages; (2) Private nuisance, which affects one or more as private individuals, and not as a part of the public, and is a ground for a civil action only. Generally a nuisance affects real property, and the law with regard thereto seems to have been originally confined to such property; but modern law takes a much wider range. The old common law remedies for the individual were two: (1) Quod permittat prosternere, which was a writ commanding the defendant to permit the plaintiff to abate the nuisance, or show cause against the same. The plaintiff could have judgment to abate the nuisance, and for damages against the defendant; (2) An Assize of Nuisance, in which the sheriff was commanded to summon a. jury to view the premises, and, if they found for the plaintiff, to have the nuisance abated, and for damages. These ancient remedies were never in use in this country. Both under the old and modern law the private individual injured by a private nuisance or specially injured by a public nuisance, has, to a limited ex- tent, the right to take the law into his own hands and abate the nui- sance (as has been explained in ch. 1, § 2), as well as the additional remedy of resorting to the courts. The modern remedies in the courts are, an action at law for damages, and a suit in equity to forbid, abate, or restrain the nuisance. The action at law for damages is only a half- way remedy sometimes leading to endless litigation; so that the remedy in equity by injunction — plain or mandatory — "is sometimes the only one effective or complete, forbidding, preventing, stopping, abating the nuisance, exercising such restraint, and no more, as the exigencies of the particular case demand." The courts of equity do not administer relief in such cases as a matter of strict right, but of orderly and rea- sonable discretion according to the right of the case before them, and, hence, will refuse to interfere, but send the party to a court of law, where the payment of damages would be the fairer course to all con- cerned. (214). The authority of the attorney-general, or other law officer empowered ■ to represent the government, to file an Information in Equity to restrain and prevent a public nuisance, seems to be well established in England. It may be done by him ex officio, or upon the relation of interested per- sons. A similar practice obtains in some, if not all, of the states. (218-219). A private individual may recover damages at law for a pub- lic nuisance from which he suffers a special damage. (220). The law provides an adequate remedy for the wrong done the general public by a nuisance — ^which remedy is by indictment or injunction at the suit of the attorney general — and thereby prevents a multiplicity of vexatious private actions. Hence it is, that a private individual cannot maintain an action for a public nuisance unless he show a special damage to himself. But he is not required to prove an injury from which he is the sole, or even a peculiar, sufferer. While the damage must be special, as contradistinguished from a grievance common to the whole public, it may nevertheless be suffered by a number of people, or by even a class of people, and give to each a right of redress. The amount of damages recoverable by them may vary according to the extent of injury suf- fered by each; but each one of them may maintain an action by showing XiH INTRODUCTION. the special injury suffered by him — for one who falls into a ditch dug in a public road is not to be prevented from recovering damages, from him who dug the ditch, by the fact that many others also fell into the same ditch. (220). It has also been said that in order for a private citizen to recover for a public nuisance, he must establish some damage or injury special and peculiar to himself and differing in kind and de- gree from that suffered in common with the general public. (222). [There is diversity of opinion quoad "peculiar."] Equity will afford relief by injunction in cases of private nuisance, but this relief is al- ways exercised sparingly and with great caution — especially where it is sought to stop, or seriously cripple, a public enterprise because of its being more or less of a nuisance to one or more individuals. (228). A mandatory injunction will be issued to force the removal of a nuisance; but a preliminary mandatory injunction will be ordered only in cases of extreme necessity. (230). Obedience to a mandatory injunction will be enforced by proceedings in contempt. (232). Successive actions may be brought for damages, from time to time, until the defendant is compelled to abate the nuisance — every continuance of the nuisance after a preceding action being considered a new injury. The first ac- tion is regarded as a trial of the question whether or not the thing complained of be a nuisance. Therefore it is proper to allow only com- pensatory damages in the first action, while exemplary damages are al- lowed In the subsequent actions; which damages should be so exemplary as to compel an abatement of the nuisance. (232). Ordinarily where a trespass results in a nuisance, successive suits may be brought for its continuance, in each of which the damages are estimated only up to the commencement of the action, in some states; but up to the time of trial. in others. Where the building of a railroad is authorized by law and is done with reasonable care and skill, it is not a nuisance, and the com- pany is not answerable, after paying the sum assessed for the land thus appropriated, in any subsequent action. The damages resulting from an appropriation under its charter — both present and prospective dam- ages — may be assessed in one proceeding; and it is the legal right of either plaintiff or defendant to have the permanent damages assessed by demanding such assessment in the pleadings. If either makes such demands the judgment becomes res judicata as to all subsequent ac- tions. (234). Sec. 12. Trespass Quaee Clatjsum Pbegit. — It is an elementary prin- ciple that every unauthorized entry upon the lands of another is un- lawful and, therefore, a trespass. From every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass, herbage, or shrubbery. (236). A person having the freehold and right of possession could, under the old, and some modern, authorities, even enter upon lands by force without sub- jecting himself to an action of trespass q. c. f. by the party in posses- sion. The ground of this action is the breaking and entering the plain- tiff's close. If the defendant can justify the entering, he defeats the ac- tion no matter how outrageous his conduct after such an entry. But if the entry 6e unlawful, then misconduct contemporaneous with, or sub- sequent to, such entry, is only matter of aggravation for which both compensatory and exemplary damages may be recovered. (237-240). But where an authority to enter upon the premises of another is given hy law, the party becomes a trespasser ab initio by misconduct after such entry. Per contra where the entry is under authority or license given by the party in possession, misconduct after such entry may be punished in some appropriate action, iut not in trespass q. c. f. because the doctrine of "trespasser ab initio" is confined strictly to those cases in which the right to enter is given ly law. The reasons given for this distinction have been said to amount to a distinction without a differ- ence. The law confers a right to enter premises upon the customers of innkeepers, shopkeepers, and the like, who undertake to serve the public, and upon ofiicers charged with the service of process— all of whom be- come trespassers ab initio by misconduct subsequent to entry. (240). INTRODUCTION. xliii Under the English law, an actual possession by the plaintiff at the time of the trespass committed is necessary to support this action. But in England all lands are occupied, and a trespass cannot be committed but upon the actual possession of some one; while here, a great part of our lands are not occupied by any actual possession, and, if we were to fol- low the English rule, we should expose such unoccupied lands to be trespassed upon without affording the owner a remedy. Our rule is: "In order to support an action for simple trespass (under the Code) a. plaintiff must show actual possession where any person is holding ad- versely; but, in the absence of adverse occupation, the constructive pos- session which proof of title draws to him is sufficient." (242). If the plaintiff have a deed covering the locus in quo, his actual possession of a part thereof is actual possession of the whole. The deed ascertains the extent of the possession. If any part be in the actual adverse oc- cupancy of another under an inferior title, occupation of a part under the good title extends to and embraces the part actually occupied under such inferior title. (243). Possession alone is sufiBcient to maintain this action against a mere tort-feasor. (245). The grantee or lessee of vesturae terrae or herbogii terrae may maintain the action, or eject- ment, "though he has not the soil." (246). Trespass q. c. f. lies for an injury to an easement: but it cannot be maintained by a city or town for injuries to a public street, if the fee simple in the street be in an- other. Neither can such owner in fee maintain the action. Such in- juries are to be redressed by some other proceeding— such as indictment for a public nuisance, etc. (246-248). However, a city or town may maintain the action against an invader of a market house owned by it in fee. (248). The action may be maintained by the owner of the servient estate against the owner of an easement for an abuse of the rights conferred by the granted easement; and by a tenant against his landlord for an unwarranted entry. (249-250). One tenant in com- mon cannot maintain this action against another for breaking and en- tering the close owned in common; because each has an equal right of entry, occupation, and enjoyment, and the possession of one is presumed to be the possession of all. But if one cotenant oiist the other, the other may maintain this action against him. (250). Where there is a per- manent injury to the freehold, the reversioner or remainderman may maintain an action on the case in the nature of waste against the tort- feasor; but only the lessee in possession can sustain an action of tres- pass q. c. f. against him. Both the lessee and the reversioner may sue for the same tortious act — the one in trespass q. c. f. and the other in trespass on the case. (252). Trespass q. c. f. lies against one whose cattle go upon the lands of another and cause injury to crops, etc. (254-256). This action is used in some jurisdictions to try the title to real estate, it being "a common and convenient mode of trying the title to land of which there is a constructive, but no actual, possession." Trespass is essentially an offense against the possession, and, hence, an action therefor can be maintained by one who does not own the fee. This being so, a judgment in trespass q. c. f. is not an estoppel as to the title, unless the verdict be upon an issue involving the title; but if the pleadings raise such issue — as they may properly do — a verdict and judgment thereon do work an estoppel as to the title. (257). Sec. 13. Action on the Case for In.tury to Real Estate. — If a stran- ger break the close of one having the particular estate, and, besides in- juring him by taking away his crops, etc., also commits an injury to the inheritance, as by cutting timber trees, or the like, the particular tenant may maintain trespass q. c. f. and the owner of the expectant estate may maintain trespass on the case in the nature of waste. (258). The ac- tion on the case lies for the disturbance or obstruction of an easement; and also for an increase of the servitude. (259). The distinction be- tween trespass q. c. f. and trespass on the case, as regards injuries to realty, is this: where the immediate act itself occasions the injury, tres- pass q. c. t. lies; but where the act itself is not an injury but an injury results in consequence thereof, trespass on the case lies. (260). Xliv INTRODUCTION. Sec. 14. Remedy in Equity to Restrain Trespasses. — ^An injunction will issue in equity to restrain a trespass which causes an irreparable injury. Formerly such relief was never afforded until the complainant had established his title to the locus in quo, at law; but that doctrine has been greatly modified in modern times. (261-262). An ordinary trespass — one which does not cause irreparable injury — will not be en- joined unless the defendant be insolvent. (263-264). Continuous and repeated trespasses by a person or his animals will be enjoined. To re- fuse an injunction in such cases would enable a wrongdoer to force an innocent person to perpetually lease his property for such damagos as he might be able to recover in repeated actions of trespass, and deprive him of the right to enjoy his estate. (265). Sec. 15. Remedy Against Trespasses Cos[iiiTTEi) in Exercise op Rights Claimed Under Eminent Domain. — Where land is appropriated by a corporation having the right of condemnation, the owner may re- sort to the remedy prescribed by a special statute or to the ordinary common law or Code remedies appropriate to the injuries sustained, at his own election. (266). In controversies growing out of the right to appropriate property under eminent domain it is against the policy of the law to hamper and delay public enterprises by injunction. Per con- tra, it accords with the law's policy to restrain, by injunction, those who, by force, impede the prosecution of such works. Sec. 16. Remedy of Licensee Who is Evicted. — A mere license to oc- cupy realty is revocable at will, even though value be paid for such license. The remedy of one whose license is revoked, and who is ex- cluded or forcibly ejected from the premises, is upon the contract and not in tort. (270). Sec. 17. Remedies on Covenants for Title. — In contracts for the sale of land, it is the duty of the purchaser to guard himself against defects of title, quantity, incumbrances, and the like, by requiring of the ven- dor the usual covenants of seizin, right to convey, against incumbrances, quiet enjoyment or warranty, and for further assurance. If he fail so to do, it is his own folly and the law will not afford him a remedy for the consequences of his own negligence. But if there be any actual misrepresentation or other positive fraud on the part of the vendor, with regard to a material matter, the purchaser will be afforded relief. The maxim caveat emptor applies, in the absence of fraud, in all courts whether of law or equity. (271). Upon the covenants of seizin and right to convey, no action can be maintained by an assignee of the title, for, if broken at all, these covenants are necessarily broken at the moment of the execution of the deed; and, as they do not run with the land, they do not pass by a subsequent conveyance thereof. The cove- nants of warranty and quiet enjoyment, on the other hand, do run with the land and may be sued upon by a subsequent purchaser, however re- mote. (273). The fact that the covenantee had notice of the existence of an incumbrance at the time he accepted his deed, is no bar to his re- covery on a covenant against incumbrances. (275). As a general rule a plaintiff can not recover for a breach of the covenants of quiet enjoy- ment, warranty, and further assurance until there is a breach of such covenants. The measure of damages for breach of the covenants of war- ranty and quiet enjoyment, and seizin also, is, as a general rule, the same, to wit, the price paid for the land with interest: but in some states the measure of damages is the value of the land at the time of the evic- tion. (277). It is a well settled rule, that, under the covenants of warranty and quiet enjoyment, the plaintiff must show a lawful evic- tion in order to maintain his action. But it is not necessary to show that the eviction was under legal process. (280-281). When the heir, and when the personal representative, of a deceased covenantee must sue for breach of covenant, is a question which the authorities do not answer very satisfactorily. In this instance resort will have to be had to the methods and scales of Wouter Van Twiller. (282-283). There is a well established jurisdiction in equity over certain covenants. A covenantor will be enjoined from disturbing the covenantee in violation INTRODUCTION. xlv of the covenant; and specific performance of a covenant for further assurance will be decreed. "But we find no case of Interference by equity in relation to the covenant of warranty." (285). Sec. 18. Mortgagee's Remedies. — Anciently equity took no part in controversies between mortgagor and mortgagee. If the mortgagee took possession before the day of forfeiture and was in possession when the default occurred, he needed no remedy; for the mortgagor's rights were dead and gone, and the most complete title — the legal title, the right of possession and the actual possession — was in him. If the mortgagor was in possession when the default occurred, the mortgagee's title was perfect with the exception of actual possession; and this he could ob- tain by entry followed up, if necessary, by the recovery of possession in an action at law. At a later period equity assumed jurisdiction by per- mitting the mortgagor to redeem, on a day fixed by the court, by paying the money, notwithstanding the fact that complete default had been made and the mortgagee's title had become perfect at law. As this rul- ing would have left the mortgagee's title at the mercy of the mortgagor — -who might, or might not, elect to redeem — the court permitted the mort- gagee to file a bill against the mortgagor to compel him to redeem his land, by a day to be set by the court, or else to forfeit his equity of re- demption. This remedy of the mortgagee was called a Bill of Fore- closure. Originally, the practice was to set a day on which the mort- gagor was required to pay the debt secured, and thereby redeem his land. Should the mortgagor fail to pay the money by that day, a decree was entered against him whereby he was forever foreclosed of his equity of redemption and the title of the mortgagee was made perfect as against him and his heirs. Later on, the court, instead of decreeing a strict foreclosure, decreed a sale of the land by a commissioner, and out of the proceeds discharged the mortgage debt. If a surplus remained after discharging the debt, interest and costs, it was ordered to be paid to the mortgagor. This last is the modern equity and Code practice. Notwithstanding the remedy of foreclosure in equity, the mortgagee had, and still has, the right to enter upon the premises, or, if necessary, to bring an action at law to recover such possession. He may also disre- gard the mortgage and bring an action in personam against the mort- gagor for the debt. Thus, at the present time, a mortgagee has three distinct remedies in the courts: (1) Ejectment for the mortgaged land; (2) an action or suit to foreclose the mortgage; (3) an action in per- sonam for the debt. Under the Code practice, all of these remedies may be asserted in one action. Under the old practice of strict foreclosure, only the heir of a deceased mortgagor was a proper party; except where an account of the personal property was sought from the personal rep- resentative; in which case only could the personal representative be made a defendant. It is still the practice in some jurisdictions to per- mit only the heir to be made a party; while in others, both the personal representative and the heir are necessary parties. All incumbrancers, whether prior or subsequent to the mortgage, must be joined with the mortgagor as parties defendant. If this is not done, the court should, ex mero motu, order them to be brought in as parties defendant. (285- 288). After an action of ejectment or foreclosure is commenced, the crops and rents and profits of the land belong to the mortgagee — that is, he is entitled to them. (288). If the mortgage debt be payable in in- stallments, an action at law will lie for each installment as it matures: but a court will not entertain an action or suit to foreclose the mortgage until all the installments are due. (290). The decree or judgment of foreclosure must still set a time within which the mortgagor may re- deem his land — which time must be such as will give him a reasonable opportunity to raise the money — before a sale is made under the decree of the court. The decree must direct that the sale be reported to the court and confirmed before the title shall be made to the purchaser. (291). A bidder has only inchoate rights as a purchaser before the sale is confirmed. The sale will be set aside and a resale ordered when, in the sound discretion of the court — due regard being had to the rights xlvi INTKODUCTION. of the bidder— justice and fairness requires such a course. After a sale- has been reported, the court will usually order a resale if a responsible person will raise the bid ten per cent, or more, and agree to start the bidding at a resale at such advanced price — security being given for his compliance with his proposition. (294). The mortgagee may purchase at the sale of the commission appointed by the court to make the fore- closure sale: but "it is usual and perhaps necessary for the trustee and beneficiary [mortgagee] to obtain leave of the court to bid, or else to have a confirmation with full knowledge of all the facts appearing," Sec. 19. Remedies of the Mobtgagoe and His Assigns. — Both under the equity and Code practice a mortgagor may sue the mortgagee for redemption, and will be allowed to redeem his land after the mortgage has become absolute. The bill or complaint in such a suit should con- tain a formal offer to redeem by paying whatever sum shall be found du« upon an adjustment of the account between the parties. (296). A like right of redemption exists and will be enforced by the courts where it is shown that a deed absolute on its face was in fact intended by the parties thereto to be a mortgage. (297). If a mortgagee sell under a power contained in the mortgage and purchase at his own sale, either in person or through an agent, the mortgagor may still successfully prosecute a suit for redemption against him. (298). Sec. 20. Remedy fob Breaoi-i of Contbact to Pukchase, Convey, or Devise Land. — At law the vendor in a contract to convey land recovers damages for breach of the contract. There are two lines of authority as to the measure of his damages — the English Rule, and the Rule of some of the American courts. By the English rule, the measure of dam- ages is the difference between the price fixed by the contract, and the value of the land at the time fixed for the delivery of the deed therefor. Some states adopt this English rule. Other states permit the vendor to recover the whole contract price, with interest thereon, upon his show- ing that he has tendered a deed to the vendee. (300-304). The vendee may also sue for damages at law upon breach of the contract. The measure of his damages is the value of the land at the time of the breach of the contract to convey. (305). The remedies afforded by a court of law to both vendor and vendee are inadequate. Therefore equity will do full justice to each by requiring a specific performance of the con- tract. At one while the courts of equity were quite oppressive in re- quiring practical impossibilities from the vendor. For instance, if a husband contracted to sell his wife's land or his own land discharged of dower, he could be committed for contempt until he procured his wife's joinder with him in a conveyance: so if a person contracted to sell land which he did not own, or to which he had but an imperfect title, he would be committed until he procured title or perfected such title as he had, and then conveyed the premises according to his con- tract, unless he showed that, after strenuous efforts on his part, it was impossible to perform his contract. These harsh rulings have about passed away. The present rule is, that specific performance of a con- tract to buy or sell real estate will be decreed as a matter of course in plain cases, but when hardship would result from such a decree, it is a matter of discretion with the court. (306). While an oral contract to purchase or convey land is void under the Statute of Frauds, still equity will decree specific performance of such contracts if they have been in part performed. Such relief is based upon fraud. The part performance must be established by acts palpable and evident to the senses of all, such as absolute and visible possession of the premises by the vendee and his making lasting improvements thereon. This is the doctrine of Part Performance. It does not hold in North Carolina. (309). . When specific performance of an oral contract cannot be decreed because the facts will not justify the application of the doctrine of part performance, equity will afford the oral vendee some relief anyhow. It will decree compensation to the amount of the purchase money paid by him and in- terest thereon, and also for all beneficial and lasting improvements which he may have put upon the premises. (311 and 309). The oral INTRODUCTION. xivil vendee is entitled to such reimbursement although he is out of possession when he seeks such relief. (311). It is a clearly recognized principle, that if there is only a partial failure of performance by one party to a contract to convey, for which there may be a compensation in damages, the contract is not put an end to: but if the vendor can convey only an Insignificant and Immaterial part of what is bargained for, equity will not compel the vendee to take that portion even at the corresponding reduction in price. However, it the vendor can substantially comply with his contract, and the part as to which he cannot perform it, is of such a character as to admit of compensation being made to the vendee for such failure, equity will enforce specific performance of the contract so modified. (313). Specific performance of the award of arbitrators will be decreed when the subject matter of the award is realty; and so of a contract to devise realty. (314-315). The vendor, in a contract to convey, occupies practically the same position as a mortgagee. He has several remedies: (1) An action in personam, at law, to recover the price; (2) ejectment, at law, to get possession of the land; (3) specific performance in equity. Equity will decree that the vendee specifically perform his contract by paying the price by a time fixed by the court, and that, upon his failure so to do, the land be sold by a commissioner and the proceeds thereof applied to the payment of the amount due the vendor, together with interest and costs, — the surplus to be returned to the vendee. The vendor may prosecute all of these remedies at the same time, and, under the Code practice, in the same action. As a mort- gage will not be foredosed until all the installments of the debt secured are due, so specific performance will not be decreed until all installments of the price are due: but each installment may be sued on at law as it ma- tures. (315-318). Sec. 21. Weit of Assistance. — This writ may be termed an equitable habere facias possessionem, for it only issued from a court of equity un- der the old practice. Under the Code practice, it issues from any court having jurisdiction to sell real estate. Its use is to put one into pos- session who has purchased at a judicial sale and, having fully complied with the terms of sale, has received a deed from the commissioner. The writ is obtained by a motion in the cause based upon affidavit that the person in possession is a party to the cause, or holds under such a party, and refuses to surrender the possession. (318). CHAPTER IV. FORMS OF ACTION TO ASSERT RIGHTS OTHER THAN THOSE CONCERNING REAL PROPERTY.— Sec. 1. AcTIo^'s Ex Contractu and Ex Delicto DistinguishiJd. — A constitutional provision forbidding Im- prisonment for debt except in cases of fraud, forbids such imprisonment in all actions ex contractu unless fraud be established: but it does not forbid such imprisonment in actions of pure tort. (320). It is said that there is no thoroughly satisfactory definition of a tort. Ordinarily, the essence of a tort consists in the violation of some duty due to an in- dividual, which duty may sometimes arise out of a contract, but is a thing different from the mere contract obligation. In such cases the violation of such duty becomes a tort for which an action ex delicto will lie. "A breach of contract may be so intended and planned; so inter- woven into a scheme of oppression and fraud; so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its association with attendant circumstances,' a tortious and wrongful act or omission." Where a breach of contract involves a tort, the contract may be waived and re- dress he had in an action of tort. Mutatis mutandis, if a transaction involve both a tort and a breach of contract, express or implied, the tort may be waived and redress had in an action ex contractu. Thus, if chattels be tortiously taken and sold, the owner may ratify such sale -Xlviii INTEODUCTION. and recover the price obtained by the tort feasor, in assumpsit for money had and received. In such cases the owner has the option to sue either in tort or in contract. (321-328). A failure to perform its con- tract with a city to maintain a certain fire pressure, subjects a water company to an action of tort by a citizen injured by such failure, although such citizen be not a party to the contract. (328). At common law it was of vital importance that a plaintiff select the proper remedy. The intricacies and mischiefs of that system of procedure have been sup- planted by the Code practice under which there is but one form of ac- tion. If the complaint set out such facts as entitle the plaintiff to re- lief, the court will, under the Code practice, give the appropriate relief without quibbling over the questions of form and whether or not the action is, or should be, ex contractu or ex delicto. (330). It often hap- pens that a plaintiff has an election to sue in either contract or tort. By the skillful exercise of this election he may recover from one non sui juris for a tort growing out of a contract, although he could not re- cover on the contract itself. Some courts sustain and some repudiate this doctrine. (333-339). Sec. 2. Actions Ex Contractu. — (a) Covenant. — "Covenant" at com- mon law is an action upon a deed. It is only because a deed requires a seal that this action lies upon ah agreement under seal. It is a ques- tion whether the instrument be or be not a deed that governs. All sealed instruments are deeds. But even at common law the action would sometimes lie against a party to an instrument although he had not affixed his seal thereto — e. g. one who accepts a sealed lease contain- ing covenants upon his part. There were other exceptions growing out of the customs of London and other local customs. An action of debt would also lie upon a sealed instrument for a certain sum of money due thereon: if the amount due was not fixed and certain but had to be as- certained in the way of damages for breach of the agreement set forth in the deed, covenant was the sole remedy. (338). fb) Debt. The ac- tion of debt is founded upon an express or implied contract in which the certainty of the sum appears. It lies upon every express contract to pay a sum certain. It does not lie upon a contract to pay or deliver things other than money, such as lumber, cotton, etc. (339). (c) Ac- count. If one be. indebted to another for a number of items due by ac- count, or for a balance in the latter's favor where there are mutual ac- counts, the creditor's remedy is assumpsit at law. But if the account be so complicated as to render it impractical tor a jury to deal with it, assumpsit will not lie — the remedy being an action for account at law, in which the trial is had before auditors; or a bill in equity will lie. The jurisdiction of equity in matters of account extends to those cases, and to those only, in which the action of account lies at law. Both remedies are confined to those cases in which the accounts are too ex- tensive or too complicated to admit of a trial by jury. (341-344). (d) Assumpsit. The action on the case usually called Assumpsit is founded on a contract express or implied. "Case" is a generic term which embraces many different species of actions. There are two, how- ever, of more frequent use than any other form of action whatever — these are assumpsit and trover. The strict legal denomination of the action of assumpsit is "Trespass on the Case upon Promises." This form of action originated, like many others, under the statute of West- minster 2. (344). Under the strict practice at common law, assump- • sit would not lie on a sealed instrument so long as that instrument re- mained in full force; because covenant (or debt) was the appropriate remedy. However, there were instances in which assumpsit would lie on a sealed instrument or, at least, on causes of action growing out of, or intimately connected with, such instruments. These instances would appear to be exceptions to the above rule; but it would be heresy to call them such. (346). Sec. 3. AcTIo^-s Ex Delicto. — (a) Trespass Vi et Annis. All of the authorities concur in the position that whenever an injury is committed by the immediate act complained of, the remedy is by Trespass Vi et INTRODUCTION. xlix Armis; in other words, if the Injury suffered be the immediate result of the tortious act, Trespass Vi et Armis lies, and it is immaterial whether the injury be wilful or not. The dividing line between tres- pass vi et armis and trespass on the case is the difference between im- mediate injury and consequential injury. If the injury be done by the act of the party himself at the time, or he be the immediate cause of it, trespass vi et armis is the remedy though the act causing the injury happened accidentally or by misfortune. (348). Trespass q. c. f. and trespass vi et armis may be joined as separate counts in the same ac- tion, as the form, pleas, and judgment in the two actions are the same. Trespass vi et armis will lie for any unlawful interference with an- other's person or chattels provided it be accompanied with force actual or implied. (349). (i) Trespass on the Case. This action originated with the Statute Westminster 2. It lies for any cause of action for which covenant or debt will not lie. It is a genus which comprises many species, the most prominent of which are assumpsit and trover. It is in the nature of a bill in equity and whatever is right in justice and conscience will sustain or defeat the action. (350). It is based upon very general principles and is designed to afford relief in all cases where one man is injured by the wrongful act of another and no other remedy is provided by law. (350). "When the act itself is complained of, trespass vi et amris is the proper action. Where the consequences only are complained of, trespass on the case — usually abbreviated to "Case" — is the proper action. That is, trespass lies where the injury is immediate — case where it is consequential. "It sometimes requires an exceedingly nice perception to be able to trace the dividing line" be- tween the two remedies. In some cases, although the injury be immedi- ate, the plaintiff has his election, and may waive the trespass and bring case for the consequential damage — as if one take another's horse, the latter may elect to bring trover (which is an action on the case) in- stead of trespass vi et armis. But to maintain case, the plaintiff miist waive his ground of complaint on account of the trespass. (351). Wherever there is a contract and a common-law duty incident to the employment which is the subject of the' contract, a party to the contract may recover either in tort or in contract for a breach of such contract. There is some confusion in the authorities as to what is meant by the common-law duty as distinguished from duties and obligations imposed by the contract itself. In some instances an action will lie for failure to perform the common-law duties incident to a contract in favor of one who is not a party to the contract. (353). (c) Trover. Trover is an action ex delicto. It is one of the forms of trespass on the case. In form, it is a fiction; in substance, a remedy to recover the value of chat- tels personal wrongfully converted by another to his own use. The form supposes that the defendant may have come lawfully l>y the pos- session of the goods, and it lies where in fact his possession was ac- quired lawfully. If a taking be wrongful and by trepass, by bringing trover the plaintiff waives the trespass and admits the possession to have been lawfully gotten; and, hence, no damages can be recovered in such action for the trespass in taking the goods. Trover is an action of tort. The whole tort consists in the wrongful conversion. Two things are necessary to be proved in trover, (1) that the property con- verted was that of the plaintiff: (2) a wrongful conversion by the defend- ant. (355). (d) Replevin. The action of replevin is founded on a tortious taking and detaining. It is analogous to an action of tres- pass; but is, in fact, a proceeding in rem to regain possession cf the chattels in controversy, and in part a proceeding in personam to re- cover damages for the wrongful taking and detention thereof — not for their value. In England there were two kinds of replevin — one at com- mon law and the other under the statute of Marlbridge. (355). By the common law, a taking by the defendant was necessary to sustain the action — "We command you that you cause to be replevied the cattle of B which D took and unjustly detains," was the language of the writ. Without a trespass by the defendant, the writ could not be used. If ] INTRODUCTION. the defendant came into possession by bailment, the plaintiff was driven to an action of trover or detinue; and it was by detinue alone that the possession of the specific property could be regained. (358). (e) Detinue. Detinue is defined, in the old books, as a "remedy founded upon the delivery of goods, by the owner, to another to keep, who will not after- wards deliver them back again." To sustain the action it must be shown that the defendant came laiofully into the possession of the goods — either by delivery to him or by his finding them. In modern times the action is allowed in every case in which the owner prefers to recover the specific property rather than damages for its conversion, and no regard is paid to the manner in which the defendant acquired the possession. The unlawful detaining is the sole foundation of the action. (359). The judgment in detinue should be conditional; it should adjudge that the plaintiff recover the specific articles or the value thereof, if the specific articles can not be had; and such also is the direction to the sheriff in the distringas issued to enforce the judg- ment. There is no seizing of the chattels sued for until after the final judgment; but in replevin the property is seized immediately upon the commencement of the action. Replevin is, therefore, the only certain remedy for the recovery of the specific chattel. (360, 361). Sec. 4. Forms of Action Under the Code Practice. — Under the Code practice, there is but one form of action in civil cases. In that action many ancillary remedies may be obtained, i. e. Arrest and Ball, Claim and Delivery, Injunction, Attachment, and Appointment of Receivers. Those ancillary remedies need not be asked for even if the party be en- titled to them; and if they be improperly asked for, they are simply de- nied, which denial does not affect the action itself. The distinction be- tween the present system of procedure and that formerly in force is, that under the old system there were distinct forms of action for the redress of various injuries, and so much regard was paid to the form, of the action, that, however meritorious the cause, a mistake in the selec- tion of the remedy sent the plaintiff out of court. The common sense of mankind has caused the old system to be abrogated in most of the states and countries of the English speaking race. The distinction be- tween actions at law and suits in equity and the forms of all such ac- tions are abolished in most jurisdictions, and all relief is afforded in the one form of civil action above mentioned. There are torts and con- tracts, and legal rights and equitable rights, just as there used to be; but there are not several forms of action, nor separate courts of law and equity. One court administers both law and equity, and all rights are asserted in a single form of action. The Code practice is neither a modi- fication nor a simplification of any of the common law modes of pro- cedure. It practically abolishes all of the common law forms of action, and adopts the equity practice with some slight modifications. (362- 365). CHAPTER V. INJURIES TO PERSONAL SECURITY, TO PERSONAL LIBERTY AND TO PRIVILEGES.— Sec. 1. Remedies for the Death of a Person. Appeals of Death. Lord Campbell's Act. — At common law there were three occasions upon which the courts inquired of the killing of a human being: (1) Indictments, which were prosecutions brought in the name and behalf of the king; (2) Appeals of death, which were proceedings brought, not by the king nor in his name, but in the name and for the benefit of private individuals; (3) Inquisitions against deodands. An appeal was an accusation by one private subject against another for some heinous crime. It was a private process for the punishment of public crimes which originated in a custom, derived from the ancient Germans, of allowing a pecuniary satisfaction, called a weregild, to the party injured or to his relations. Such proceedings were never regarded as a violation of Magna Charta: but were considered "a noble remedy and a badge of the rights and liberties of Englishmen." An acquittal INTRODUCTION. 11 in this proceeding was a bar to a subsequent indictment for the same of- fense; but an acquittal on an indictment was not a bar to a subsequent prosecution of an appeal for the same offense. By the Statute of Glou- cester, an appeal of murder "must be sued out within a year and a day after the death" of the victim. Appeals were abolished by -59 George III. The remedy was never in use in this country, except in Maryland; though the ?-tfif7[i existed in Pennsylvania also. (366). Except where an appeal would lie, the maxim actio personalis moritux cum persona ap- plied, and no recovery could be had for the death of a human being — neither husband, wife, parent, child, nor master could recover for the loss consequent upon the death of spouse, parent, infant child, or serv^ ant, where the death was caused by the wrongful act or negligence of another. This state of the law was remedied in England by Lord Camp- bell's Act in 1S46, by which those dependent upon one who was killed by the wrongful act or negligence of another were given a remedy. The maxim of the common law, while the subject of criticism by text-writ- ers, seems to have been fully adopted and in force in this country. Statutes of like character with Lord Campbell's Act exist, perhaps, in .all the states; though the provisions of such statutes differ in important particulars. (369). Sec. 2. Peevextive REMi]iuiES. — Peace Warrant. This is a summary remedy by which one may be required to give bond for keeping the peace and for his good behavior. It is a criminal proceeding instituted iDy one individual against another, and is generally regulated by stat- ute. (374). It seems to be a rule prevailing everywhere, that an in- junction will not lie to prevent a threatened crime. Formerly the courts would not interfere by injunction except where some property interest was involved; but, now, there seems to be a disposition on the part of some courts to enjoin acts which interfere with purely personal rights, such as paying improper attentions to a man's wife, and the like. (375). Sec. 3. Threats. — The extortion of money by threats of iodnly hurt is indictable at common law, and an action on the case lies for pecuniary damages consequent upon such threat. A mere vain fear produced by a threat will not sustain the action; neither will a threat of injury to property — it must be a threat to injure the person. Sickness brought on by terror caused by a threat of arrest and imprisonment in the peniten- tiary, is such an injury as will sustain the action. (381). Trespass lies for legal acts which become trespasses by accident. The lawfulness or unlawfulness of the original act, is not controlling — for one is liable if he strike another by accident while defending himself from a third person; but is not liable, in the absence of special damage, for throwing a log into a highway. The true question is, whether or not the injury resulted directly and immediately from the act. If it did, trespass will lie though the injury be not instantaneous. The intervention of a free agent will relieve the one who did the original act, unless such free agent acted upon a natural impulse of self-defense, — such as throwing off a lighted squib that falls upon him. (382.) It is not necessary, to constitute an assault, that actual violence be done to the person. If the party threatening the assault have the ability, means, and apparent intention to carry his threat into execution, it constitutes an actionable assault. Striking the horse upon which one is riding, or upsetting a chair or carriage in which one is sitting constitutes an assault. (383). Boisterous language which, however, negatives the intention to strike, does not constitute an assault; and this is so although there be some demonstration of force. Thus, where the plaintiff placed his hand upon his sword and said, "If the time were not assize, I'd run you through, sir, — your eyes," this was not an assault. (384). If one lift up his cane or fist at another in a threatening manner, or strike at him with his tist or any weapon — being within striking distance — but miss him, it is called an "unlawful setting upon one's person," and is an assault for which an action of trespass lies. (385). Entering the sleeping room of a female at night and leaning over her with a proffer of criminal sexual Intercourse, the aggressor being so near as to excite fear and ap- lii INTRODUCTION. prehension of force in the execution of his purpose, constitutes an ac- tionable assault. If the plaintiff was so frightened and shocked In her feelings as to injure her health, she could recover damages for such in- jury. (385). In civil actions for assault and battery the defendant may show, in mitigation of damages, the provocation proceeding from the person assaulted. But the provocation must be so recent as to raise a fair presumption that the assault was committed in the heat of blood produced by the provocation. (386). The fact that the plaintiff invited the assault by insulting language or provoking conduct will not bar a recovery; and so it is when parties fight by consent. However, matters of provocation may be considered by the jury in assessing damages. In civil as in criminal actions, provocation is a mitigation, not a defense. (388). The maxim volenti non fit injuria applies to actions for assault and battery, etc: but the rule has this qualification— the act assented to must be lawful. One can not lawfully authorize another to beat him. (389). Even the ceremonies of a benevolent society are indictable and actionable if they culminate in laying hands upon a member who for- bids it. (390). Formerly, a woman could not recover for her own se- duction, but in some states the courts have overruled that doctrine. (391). The least touching of another in anger is a battery; so is ad- ministering a deleterious drug, in jest. (391). In actions of tort com- pensatory damages are allowed, which are to compensate the plaintiff for the injury suffered; when proper ground is established therefor, punitory or exemplary damages are also allowed for the punishment of the defendant and for an example to others. (392). Sec. 5. Ixjueies to the Person Resulting fkom Negligence. If an injury result from the immediate act of another — ^whether the act be wilfully or negligently done, or whether the injurious effect be intended or merely accidental — trespass vi et armis is the remedy. But if the injury be not the immediate result, trespass on the case is the remedy. (394). A common carrier of passengers owes to the passenger the duty to be careful. This duty is incident to the contract as a matter of law. The right to maintain an action for the breach of such duty, does not depend upon the contract, but is founded upon the common-law duty tO' carry safely. The pas'senger may sue upon the contract of carriage, where there is one; which action would be ex contractu; or he may bring an action of tort for the negligence, if he prefer so to do, which action would be ex delicto. (395). Negligence is a failure to do what a rea- sonable and prudent person would ordinarily do under the circumstances, or doing what such a person would not have done under the circum- stances. The essence of negligence may lie In either omission or com- mission. One who by his own negligence suffers an injury cannot re- cover from another for such injury. If the Injury be caused entirely by the negligence or improper conduct of the defendant, the plaintiff can recover: but if the injury proceed from the negligence of the plaintiff — that is, if the misfortune would not have happened had it not been for plaintiff's negligence — plaintiff cannot recover. (397). However, if the defendant be negligent and the plaintiff be guilty of contributory negli- gence, the plaintiff can recover, notwithstanding his contrihiitory negli- gence, if the defendant could have avoided the Injury by the exercise of proper care after being aware of the plaintiff's negligence. This is called the doctrine of "The Last Clear Chance." (399). While there is some con- flict of authority upon the question, the weight of authority seems to hold that no recovery can be had for injuries caused by fright if there be no immediate personal injury. Such results as nervous disease, blindness, insanity, or even a miscarriage, are too remote to sustain an action under this rule. The courts seem to be unaware of, or unable to comprehend, the common aphorism "you had as well kill a man as scare him to death." (401). In some states it is held that mental anguish, caused by the negligence of another, may be considered in fixing the damages incident to such negligence. In other states this doctrine is repudiated. In discussing this "mental anguish" doctrine, Mr. Henry A. Page put this pertinent inquiry to the courts, "How much per ang''" (403). INTRODUCTION. liii Sec. 6. Injukies to Health. — '"Injuries affecting a man's health are ■wrongs or injuries unaccompanied by force, for which there is a remedy in damages by special action on the- case." Such action lies although the injury to the plaintiff he caused by a public nuisance, or by admin- istering deleterious drugs, or by selling unwholesome food, or by selling any dangerous article for ordinary use — such as illuminating oils, stove polish, medicine, etc. Where full notice is not given of the dangerous qualities of the article sold, the manufacturer or wholesaler of such arti- cles is liable to one who purchases from the retailer. So of one who knowingly lets an infected house without notifying his lessee of the in-- fection. (406-411). A professional man is liable for injuries resulting from malpractice. Under the Code practice, such actions may be in tort or in contract at the election of the plaintiff. (412). Sec. 7. Injuries to Reputation. — Trespass on the case is the appropri- ate remedy for injuries resulting from libel and slander. A libel is a malicious publication expressed either in printing or writing, or by signs or pictures, tending to blacken the memory of the dead or the reputation of the living, and to expose them to public hatred, contempt, or ridicule. A libel is indictable as a crime, and also the subject of a civil action for damages. In the absence of a statute, proving the truth of the matter published — which is called justifying — is no defense to either the criminal or civil action for a libel; the maxim of the law be- ing, "the greater the tt-uth, the greater the libel." (413-415). The dis- tinction between libel and slander is this, libel is written or printed; slander is only spoken: or, as it is sometimes expressed, a la Irish, writ- ten slander is libel, while oral libel is slander. Every libel will sustain a civil action for damages unless the defendant be protected by privilege: but such is not the case with slander. Some words will support an ac- tion of slander without proof of actual damage suffered therefrom — -such words are said to be "actionable per se." Unless the words spoken be ac- tionable per se, it is necessary to show that the plaintiff suffered some actual loss or damage by reason of the slander, or his action will fail. The slander of women by imputations of unchastity is not actionable per se, unless such unchastity would work a forfeiture of property — such as land given to a woman upon condition to be forfeited should she become unchaste. This drop of "the essence of wisdom" of the common law has been partly wiped up with modern statutes making such slanders a crime. (415-418). By the English rule, words, to be actionable per se, must impute a crime for which corporal punishment may be inflicted in a temporal court. In this country, it is held, in some of the states, that words are actionable per se which, if true, will subject one to an indict- ment involving moral turpitude, or subject one to an infamous punish- ment; while in other states the Etiglish rule is practically followed. But in some states words are held to be actionable per se if they convey an imputation upon one in the way of his profession or occupation. Words malicious and false and uttered with intent to injure one, and which do injure him, are actionable whether defamatory or not, e. g. to call a man a dissenter, is not defamatory: but to do so in a small prejudiced coror munity, with intent to injure his trade, is actionable if such injury re- sults therefrom. Such words may not support a technical action for slander, but they will support an action of some kind — the name of the action is of no consequence. (418). Any written slander constitutes a libel. Many charges which, if merely spoken, would not support an ac- tion for slander, will, if written, support an action for libel. Words of mere ridicule or contempt, which only tend to lessen a man in public esteem or wound his feelings, will, if written, support an action for libel. (421). Some words are not actionable though highly defamatory, be- cause" spoken or written under such circumstances as to render the party uttering them immune to either criminal or civil actions therefor. Such immunity is called Privilege, and such utterances are called "Privileged Communications." Privilege is of two kinds, absolute and qualified. Ab- solute privilege shields one from all liability, criminal and civil, no mat- ter how false and malicious the charges may be. This absolute privilege extends only to utterances upon the floors of Congress and the state legis- Remedics — e. liv INTJPODUCTION". latures, reports of military or other officers to their superiors In the line of duty, to everything said by a judge on the bench, by a witness In the box, and the like. Qualified privilege does not give absolute Immunity: for the person slandered or libeled may recover, in spite of the privilege, upon proof that the words were not used in good faith, but that the de- fendant took advantage of a privileged, occasion to falsely, artfully, and knowingly defame him. To overcome this qualified privilege, falsehood and express malice must be shown. Honesty of purpose is essential to qualified privilege, and to constitute honesty of purpose the defaniatory ■words must be uttered, not merely on an occasion which would justify making them, but also from a sense of duty and with a belief that they are true. The character which a master gives a servant upon inquiry by one who proposes to employ such servant, criticism of public officers, let- ters to a department of government protesting against the appointment of one to office because of disqualifying matters charged, are Instances of qualified privilege. (422). Words uttered in church trials, of or to a member, are within the rule of qualified privilege: aliter as to such words uttered of or to a stranger, it seems. (425). In this age and country to pronounce an anathema against, and to excommunicate, a member of a church can have no such temporal ill effects, in the eye of the law, as to be actionable per se, or to exclude such acts from the pro- tection of the doctrine of qualified privilege. (426). In the absence of a statute, what is called "freedom of the press" confers upon publishers and editors no greater exemption from liability for libel than the law accords to all other persons. Liberty of the press simply protects pub- lications from censorship. (428). In cases of defamation, the defend- ant may show previous provocation received from the plaintiff, provided such provocation originated in, or be closely connected with, the same subject matter out of which the defendant's alleged libel or slander arose. The defendant may show that he spoke the defamatory words in a mo- ment of heat and passion, under provocation from the plaintiff immedi- ately preceding his utterances. Under such circumstances, all acts, etc., constituting parts of the res gestae may be shown in mitigation of dam- ages. Heat and passion alone do not mitigate; but when such emotions are directly attributable to contemporaneous provocation by the plain- tiff, they do mitigate the damages. The rule which allows provocation to be shown in mitigation of damages is confined to recent provocation and to those cases in which the matter offered in mitigation of damages is explanatory of the meaning of the language complained of and of the occasion of writing it — all being parts of a connected and continued controversy. (430-434). Prior to "Pox's Libel Act," only the question, whether, or not, the defendant published the alleged libel, was sub- mitted to the jury, in the trial of indictments for libel. Whether, or not, ■the publication was libelous was decided by the judge — the jury had nothing to do with it. Pox's Act changed this, and required the whole matter to be submitted to the jury — just as in all other criminal prosecu- tions. This act has been adopted by legislation or by judicial decision in this country. (434). Formerly under the English practice, an injunc- tion would not issue to restrain a libel; but, by statute, such practice is now allowed in that country. Except in cases of boycott, the courts of this country seem to follow the original English practice. (438). Sec. 8. Deprivation op Libeety. — (a) Habeas Corpus. This writ is as much a palladium to-day as it ever was. It was in use before the days of Magna Charta; but it became so little respected as to no longer afford substantial protection to English subjects. This was remedied by the great Habeas Corpus Act which gave to this remedy the fullest and strongest scope. It has been said that habeas corpus was neither a civil nor criminal action; that there are no parties to the proceeding except, nominally, the person detained of his liberty and the person by whom he is detained; that it is error to characterize the proceeding as a cause or action; that it is nearly allied to a proceeding in rem; that it is not de- signed to obtain redress against anybody, and no judgment can be en- tered again^st anybody; and that, techincally speaking, there is no plain- INTRODUCTION. Iv tiff and no defendant. But it is said by the Supreme Court of the United States that habeas corpus proceedings are, to all intents and purposes, civil actions, both under the common-law and Code practice. (439). One under sentence by the final judgment of a court of comptent jurisdic- tion will not, ordinarily, be discharged by habeas corpus; but if there be a want of jurisdiction In the court, or if its action be unconstitutional or in the execution of an unconstitutional law, or if its judgment be void as distinguished from erroneous or voidable, one in custody under the final judgment of a court, will be discharged by habeas corpus. (444). Mere error in a judgment cannot be reviewed in habeas corpus proceedings. (446). The writ is not a writ of error, though in some cases it may be used, in connection with the writ of certiorari, for that purpose. The character of the restraint or imprisonment necessary to sustain the writ, is not satisfactorily defined. Confinement under both civil and criminal process may be relieved; wives restrained by husbands; children with- held from those entitled to their custody; persons held in arbitrary cus- tody by private individuals, — as in madhouses; those under unlawful military control; may all obtain relief by this writ. But there must be something more than a mere moral restraint — such as telling a person to "consider himself under arrest." There must be actual confinement, or the present means of enforcing physical restraint. (446). One who Is in the custody of state oflicials under criminal process may be discharged, on habeas corpus, by a Federal court when the alleged cause of detention is for an act done in discharge of his duty as a United States official. The writ lies to discharge one in custody under process of a state court, when such action of the state court is in violation of the constitution, or of a law or treaty, of the United States: but this use of the writ is exercised with caution and as a matter of discretion rather than as a matter of course, even in those cases in which the jurisdiction clearly exists. (450). But a state court cannot discharge a prisoner in custody under the authority of the United States. (451). No appeal lies either by the state or a petitioner from the ruling of a judge that there is, or is not, probable cause, or admitting, or refusing to admit, to bail. But if the judge declines to hear evidence because an indictment for a capital offence has been found against the petitioner, his ruling becomes a question of law reviewable by appeal, certiorari, or writ of error — according to the practice of the appellate court. An appeal does lie in cases involving the custody of children and others forcibly detained by individuals, and not under legal process. A prisoner may appeal from the circuit court of the United States to the supreme court thereof, where his petition allege^ that he is imprisoned in violation of the constitution of the United States; but such appeals are restricted to those cases provided for by stat- ute. (453). (h) False Imprisonment. False imprisonment is the ille- . gal restraint of the person of any one against his will. It was regarded as a heinous offense and visited with severe punishment at the common law. As it necessarily included a technical assault, and usually included a battery also, the indictment charged assault and battery and false im- prisonment. There may be a false imprisonment without touching the person, as where an officer exhibits a warrant to a person and desires him to go before a magistrate, which request is complied with without further compulsion. This is an imprisonment because the person yields to what he supposes to be a legal necessity, and if the officer's action was unwarranted by law, such imprisonment is a false imprisonment. (456). At common law there are two remedies for an illegal arrest: (1) Tres- pass vi et armis where there is no legal excuse or justification for the arrest — as where it is made without legal process or under void legal process; (2) trespass on the case where the arrest is made under process which is erroneously issued, but is not absolutely void. Absolutely void process will protect neither the officer serving it nor the suitor who pro- cured it to be issued. If the process be erroneously issued, but not void, it will protect the officer making the arrest; and it will also protect the suitor who procured it to be issued, in an action of trespass vi et armis, though it icill not protect him in an action of "trespass on the case in the )vi INTRODUCTION. nature of malicious prosecution," where the want of probable cause and malice exist. Under the Code practice, an action of trespass vi et armis and an action of trespass on the case in the nature of false imprisonment, may be joined in the same action and set up in the same complaint — that Is, the relief afforded by both of these common-law remedies will now be afforded in one single and simple civil action. (457). In an ac- tion for malicioas prosecution, malice and the want of probable cause must be alleged and proven: but not so in an action for false imprison- ment. There is a marked distinction between the two injuries. For malicious prosecution the common-law remedy was trespass on the case. If one is imprisoned under legal process issued in an action instituted and carried on maliciously and without pro'ba'ble cause, it is malicious prosecution: but if the imprisonment be without legal process, it is false imprisonment. No proof of malice, or want of probable cause, is neces- sary to make out a case of false imprisonment — such proof cannot take the place of want of legal process. (459). If a judicial officer, whether possessed of a general or a special jurisdiction, act erroneously, or even oppressively, in the exercise of his authority and within his jurisdiction, an indimdual, at whose suit he acts, is not answerable therefor — he is not to be held for the error or misconduct of such officer. But if a judi- cial officer having only a special or limited jurisdiction, exceed his au- thority and act in a case of which he has no jurisdiction, no person can justify under such proceedings — much less the suitor who instituted them. (460). (c) Malicious Prosecution and Aiuse of Legal Process. The foundation of an action of Malicious Prosecution is the express or implied malice of the defendant. Whoever institutes legal proceedings against an innocent and unoffending person — ^which proceedings charge a person with a crime injurious to his fame and reputation and tends to deprive him of his liberty — and whoever maliciously causes a person's arrest, or brings groundless accusations against him — which entail ex- penses incident to defending himself, — is liable for damages in an action of trespass on the case. The injuries which will support an action for malicious prosecution are: (1) Injury to a man's fame — as if the subject matter of the prosecution be scandalous; (2) where a man is put in dan- ger to lose his life, limb, or liberty by the prosecution; (3) damage to his estate — as where he is forced to expend money to defend himself against the charge. (461). If one procures another to sue a third per- son without cause, an action lies against him who procured the bringing of such suit: but not against the plaintiff therein. An action against one who stirs up vexatious litigation, cannot be sustained unless it be shown that there was no cause for the action which he procured to be brought. (462). Where pro'ba'ble cause is absent, malice is implied when a crimi- .nal prosecution is instituted: but the want of probable cause can not be implied from the most express malice. If the person prosecuted be guilty, the prosecutor is not liable for malicious prosecution — no matter how malicious his motive; neither does such action lie though the per- son prosecuted be innocent, if the evidence against him be sufficient to establish probable cause and the prosecutor honestly believes the charge to be true. (463). If one person cause another to be arrested without process, it is a trespass and false imprisonment. So, if he arrest him upon process which is void in itself, or void for want of jurisdiction in the court issuing it. An action for malicious prosecution, on the other hand, is a special action on the case for the use of valid process of law from malicious motives. It presupposes valid process. (464). To sus- tain an action for malicious prosecution it is necessary to show, (1) that the prosecution has terminated by the acquittal or discharge of the ac- cused; (2) that in instituting the prosecution the prosecutor acted with- out probable cause; and (3) that he was actuated by legal malice, i. e., by improper or sinister motives. Want of probable cause and the ex- istence of malice, either express or implied, must both exist concurrently to entitle the plaintiff to recover. If probable cause be shown, the de- fense is perfect notwithstanding the fact that the defendant was actu- ated solely by malice in instituting the prosecution against the plaintiff. INTRODUCTION. Ivii How much weight, as proof of probable cause, shall be given to a judg- ment of guilty, which judgment is subsequently reversed for error, is a question not settled in an entirely satisfactory manner. It has been held that probable cause is fully established by a verdict and judgment of guilty, although upon appeal a contrary verdict and judgment be rendered in a higher court: and that, if it appear that the alleged malicious prose- cution was before a court having jurisdiction and was then decided against the defendant — nothing appearing to fix the prosecutor with any unfair means in conducting the prosecution — such judgment establishes probable cause. If there be a conviction before a magistrate, even, — he having jurisdiction of the subject matter — it will be conclusive evidence of probable cause, unless the conviction be obtained by undue means. It is an irrebuttable presumption of law that every judicial tribunal, acting within its jurisdiction, acts Impartially and honestly. This rule applies to the court and its judgment, and not to litigants in the court. (466). An action lies for the "Atuse of Legal Process," whether the process be civil or criminal. Such action is J)ased upon misconduct in the execution of valid legal process — process which is justifiable and proper in its inception. For example, if, after an arrest under valid civil or criminal process, the party arrested be subjected to unwarrant- able insult, indignities, or cruelty, or be otherwise treated with oppres- sion and undue hardship, he may maintain an action in tort against the officer and against others who unite with the officer in doing the wrong. Perhaps the most frequent form of such abuse of legal process is that of working upon the fears of the person arrested for the purpose of extort- ing money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act demanded by those con- trolling the prosecution. (470). It is said that there is a distinction between the malicious prosecution of civil actions and the malicious prosecution of criminal actions. In the last named the prosecutor is much more favored than in the first; for the prosecutor of a public wrong is protected, provided he has probable cause,, however malicious his motives. (472). An abuse of legal process consists in employing such process for some unlawful object, not for the legitimate purpose for which such process was intended by law. If process, either civil or crim- inal, be thus misused, this is an aliuse for which an action will lie. In such action it is not necessary to show either malice or want of probable cause in causing the process to issue, nor that the proceeding has termi- nated; and it is immaterial whether such proceeding was baseless or not. (473). The authorities frequently confound the action for the Abuse of Legal Process with that for Malicious Prosecution, although these actions are essentially different. (475). Exemplary damages are allowed in actions for false imprisonment if the defendant act wantonly or with criminal indifference to civil obligations. (478). (d) Liability of of- ficers in Actions for False Imprisonment, Malicious Prosecution, and Abuse of Legal Process. An independent judiciary is justly regarded as essential to the public welfare and the best interests of society. Hence, for acts done in the exercise of judicial authority clearly conferred, a judge shall not be held liable to any one in a civil action, so that he may feel free to act upon his own convictions uninfluenced by any apprehen- sion of ill consequences to himself. Judges of courts of record of superior or general jurisdiction are not liable to a civil action for their judicial acts, even when such acts are malicious, corrupt, and in excess of their jurisdiction: but judges of interior and limited jurisdiction are not pro- tected when they act beyond the limits of their jurisdiction. (479). A ministerial officer has a line of conduct marked out for him by the law, and he has nothing to do but to follow it, while a judicial officer, on the other hand, must necessarily exercise judgment and discretion in dis charging his duties. Hence it is, that a ministerial officer is held liable, in a civil action, for any failure to follow his prescribed line of duty: while a judicial officer is exempt from a civil action, under the rule above stated. No action will lie against a justice of the peace for a judicial act, as distinguished from his ministerial acts, provided h-3 act Iviii INTRODUCTION. within his jurisdiction. It is not always easy, however, to distinguish between judicial and ministerial acts. (481). Executive officers being obliged to execute process, are protected in the proper discharge ot their duty if the process issue from a court or magistrate having jurisdiction of the subject matter. If the magistrate proceed unlawfully in issuing the process, he may be liable: but the officer who executes it is not. ine executive officer is protected even when the process under which he acts is voidable for irregularity or mistake in its issue: but not where it is apparent that the process is void for want of juris Aiction m the magis- trate. (483). One who is wilfully denied, or hindered in, his right to vote, by officers who ought to receive his vote, may maintain an action, against such officers— to assert his right and to recover damages for the injury. To sustain the action, there must be proof of malice, express or implied, on the part of the officer. The action does not lie for a mere error of judgment, when their motives are pure and untainted with fraud or malice. (487). Where the question of one's right to vote is held to be a judicial question, as is the case in some jurisdictions, no liability rests upon election officers for refusing to allow one to vote — the rule applicable to judicial, as distinguished from ministerial officers, is ap- plied in such jurisdictions. (488). CHAPTER VI. INJURIES GROWING OUT OF RELATIVE RIGHTS.— Sec. 1. Hus- band AND Wife.— ra; Haheas Corpus. Whatever may have been the former law, it is now settled, that a man has no legal right to restrain his wife of her liberty by confining her to his house, etc. He may inter- pose between her and an Improper companion for the purpose of "pre- serving his honor:" but he has no right to imprison her. Therefore, she will be freed from such imprisonment or confinement, by habeas corpus, and set at liberty to go where she pleases. (490-495). (b) Seduction. The husband may recover damages, in trespass vl et armis or trespass on the case, against one who has sexual intercourse with his wife — whether the wife assented thereto, solicited it, or was forced. It is the defilement of the marriage bed — the corrupting of the wife's body rather than her mind — that constitutes the essential wrong. Seduction of the wife and the loss of her service and affections, are ruere matters of ag- gravation of damages, and not essentials to a recovery. (495). There must be positive proof of an actual marriage to sustain an action of crim. con. (497). A wife cannot maintain an action of crim. con.: but in some states she can maintain an action against anyone — man or woman — who wrongfully induces her husband to abandon her, or to send her away, or to withdraw his support. ( 498 ) . (o) Enticing and Harbor- ing. Either trespass or case lies for the wrongful enticing or harboring the wife. (501). The husband may maintain an action against one who permanently or temporarily alienates his wife's affections, although such conduct be unattended by sexual Intercourse or abandonment. (501). But If a husband's Ill-treatment of his wife be such as to justify her leaving him for fear of bodily harm, he can maintain no action against one who harbors her. (503). Neither can he recover of one who in- duces his wife to abandon him because of his brutal treatment. Par- ents are allowed greater latitude than others in the matter of Inducing their daughters to abandon their husbands for ill-treatment, and in in- ducing those who have abandoned their husbands for such cause, to re- fuse to return to them. But unless the husband's conduct be such as to justify such interference, he may maintain an action against anyone — parents Included — who induces his wife to leave him, or who induces her to remain away from him after having left him. For the mere harbor- ing of the wife, unattended by enticing or inducing her to refuse to re- turn to him, no action lies. (503-507). As at common law a wife could bring no action in the law courts without the joinder and assent of her husband, she was without any remedy against one who induced her hus- INTRODUCTION. Ux band to abandon her. But where the statutes of a state permit her to sue alone, she may maintain an action against one who entices her hus- band to abandon her or Induces him to refuse to return to her. What constitutes such a wrongful exercise of influence over the husband, is determined by practically the same rules which govern in cases of en- ticing and persuading a wife to leave, or remain away from, her husband. (507). The husband may recover damages sustained by him as the re- sult of a battery upon his wife, or of a wilful sale to her of a dangerous or deleterious drug, (509). For a tort committed upon the wife, two actions will lie — one by the husband alone for the loss of service, ex- penses, etc., the other by the husband and wife jointly, for the wife's suffering and the injury to her person. There are statutes in some of the states which allow but one action. These statutes permit all the damages incident to, and growing out of, an injury to the wife, to be recovered in the same action. (511). In the absence of an express statute, the wife can maintain no action against her husband for in- juries to her person suffered at his hands. (513). Under the English law, there is no precedent, Sixcept in a few extreme cases, where any court has granted a maintenance to the wife except in divorce proceed- ings, or as an incident to divorce. It seems to be a general rule that the granting of a maintenance to the wife out of the husband's estate, is not an original but an incidental matter — incidental to divorce. However, of late years it has been held in many states that such maintenance will be allowed by courts exercising equitable jurisdiction, where the wife brings an action for that purpose, although she is not seeking a divorce. (515). A wife may recover damages for the mutilation of her husband's corpse. (517). Sec. 2. Parent and Child.^ — (a) Habeas Corpus. The courts of equity have jurisdiction to dispose of the custody of minor children. The courts will not deprive parents of such custody unless it plainly appear that the court, in the careful exercise of such power — having due regard to the natural rights of the parent and the mental, moral, and physical welfare of the child — should place the child in the custody of some one else. This jurisdiction is generally exercised in this country by any court or judge having jurisdiction in matters of habeas corpus. When a child, servant, or wife, is brought before the court on habeas corpus and it appears that such person has suflScient discretion to make a suitable selection of the person with whom it prefers to reside, the court will allow such selection to be made, and will see that the person is not hin- dered in taking up his or her abode with the custodian so selected. But where there is a want of such discretion, the court awards the custody to some suitable person of its own selection. (520). (b) Enticing and Harboring Children. A father occupies the dual relation of parent and master of his minor children, within the rules of the law. Therefore, he may maintain trespass on the case against one who knowingly entices such children from his service, or who knowingly retains and employs them after they have left him. It is necessary to a recovery that it be proven that the defendant knew, at the time of enticing, employing, or harboring, that the child thus enticed, etc., was the servant of the plain- tiff. (524). In the days of feudal tenure, the father could recover the value of the marriage from one who abducted, his minor heir: but it was said in 1858 that in modern times there was no case in England or America of a recoveiy by a father for abduction simply; though he can recover where there has been an actual or constructive loss of his child's services as a result of its abduction. The action rests upon the right to the services. A loss of services is presumed from an abduction or en- ticing, etc. One standing in loco parentis may maintain such action. (526). (c) Seduction. A father may maintain either trespass vi et armis or trespass on the case for the seduction of his daughter — minor or adult — when she is also his servant. Theoretically he recovers as master — for any trifling service by the daughter will sustain the action^ and punitory damages are allowed. The relation of master and servant is presumed when the daughter, whether adult or minor, resides with Ix INTRODUCTION. the father or is under his control. In some states the law on this sub- ject has been changed by the courts, and the father — and In some in- stances the mother — is allowed to recover as parent — ^the fiction, that the recovery must be based on the relation of master and servant, being abolished. One standing in loco parentis may recover for seduction. (527-535). At common law, the maxim volenti non fit injuria debarred a recovery by a female for her own seduction. By statutes in some states, and by decisions in others, the law on this subject has been radi- cally changed and the female may recover in such cases, especially when the seduction is accomplished under promise of marriage. Where a daughter is allowed to recover for her own seduction, her father may also recover — the recovery in the one action being no bar to the recov- ery in the other. (535). (d) Death or Injury of Child ty Act of An- other. Right of Parents to Recover for. While the father may recover for the loss of services and for expenses resulting from the tortious injury of his minor child by another, he cannot, in the absence of a statute, recover anything if such child be killed — at least, nothing beyond loss of services previous to the child's death. (537). For such an injury to the child as does not entail loss of services or expense upon the father, the child alone can recover. For an injury that merely causes loss of services or expense to the father, the father alone can recover. Where the injury causes suffering or injury, or both, to the child, and also en- tails loss of services and expense upon the father, both the child and the father can recover — the action by the one is no bar to the action by the other. (538-539). An injury to a minor child while employed by an- other, will not sustain an action by the father where there is no wrong- ful act or negligence of the employer; and this is so although the em- ployment was not with the father's permission. (540). (e) Parent's Right to Earnings of Child. Where a parent wiolly abandons his child, he forfeits his right to the child's services and earnings — such conduct is one of the methods by which emancipation is worked. (541). At common law, the father is entitled to the services and earnings of his minor children while they live with and are supported by him, or are in his custody or under his control. The mother is not so entitled at the common law. The common law doctrine as to the mother's rights has been greatly relaxed in modern times, and the tendency of the modern decisions and statutes is to place a widowed mother in the shoes of the deceased father quoad the custody, services, and earnings of her minor children. It has been held that a mother may recover for her minor child's services even in the father's lifetime, if the father assigns to her, or abandons in her favor, his paternal rights and duties. (542). The right of a father to the services of his sane child ceases at twenty- one. It has been said that an adult child may elect still to remain un- emancipated. In such case the father continues liable for his child's support and entitled to its services and earnings. However this may be with sane adult children, it is certain, according to the ruling in New Jersey, that an adult child who is non compos is not emancipated per se upon arrival at age and, if it continue to live with the father, the father's rights to its services and earnings are uninterrupted. Whether eman- cipation has taken place at the child's majority, is a question of fact, not of law. (544). The father may permit his minor child to take and use its earnings. This is called emancipation. Emancipation puts an end to the father's rights. Emancipation may be express or impled; entire or partial; absolute or conditional; in writing or oral; for the whole minority or for a shorter term. It does not enlarge the minor's capacity to contract — it simply precludes the father from asserting his parental rights. If one employ a minor with notice of its non-emanci- pation, payment of the wages to the child is no defense to the father's action for such wages; and, mutatis mutandis, payment to the father will be no defense to the minor's action, if his emancipation be known to the employer. (546). Marriage emancipates a minor daughter, and the tendency of modern decisions is towards common sense and holding the same thing with regard to a minor son. Not only may emancipa- INTRODUCTION. Ixi tion be effected by contract between parent and child, but also by cruelty, neglect, abandonment, etc., on the part of the parent — leaving the child to shift for itself, or treating it so badly as to justify its leaving. So, acting in so depraved a manner as to make it Improper for the child to continue to live with its parents, will work an emancipation. An emancipation once made is irrevocable without the child's consent. (547). Sec. 3. Master and Servant. — (a) Master's Liahility to Servant on Contract. A servant, who is wrongfully discharged, has his election of the following remedies: (1) He may treat the contract as rescinded and immediately bring quantum meruit, but in such action he can recover only for the time actually served; (2) he may sue at once for the breach of contract, in which case he can recover only his damages up to the commencement of such action; (3) he may treat the contract as existing and sue at each period of payment for the salary then due; (4) he may wait until the end of the contract period, and then sue for the breach, in which case the measure of damages will be his stipulated salary diminished by such sum as he has actually earned, or might have earned by a reasonable effort to obtain other employment; (5) If his wages be payable in installments, he may sue on each installment as it matures, or he may sue on several matured installments at the same time — in one action or in separate actions. A judgment will be an estoppel as to all installments due at the time suit is brought^ — whether such installments be actually embraced in the action or not. A servant who is wrongfully discharged, or who quits for proper cause, must exercise reasonable diligence in seeking employment of a not lower grade. His recovery will be diminished by the amount so earned or which might have been earned. The burden is on the master to show what was, or could have been, thus earned by the servant. (549). If there be an entire execu- tory contract of hiring and the servant perform a part of it and then wilfully refuses, without legal excuse, to perform the rest, he can re- cover nothing, according to the older decisions. The manifest injustice of refusing all compensation in such cases has caused the courts to re- lax this stringent rule. The modern ruling is, that if the master has derived any benefit from the labor done and if, by the contract of hiring, the wages are payable in installments, the servant may recover the in- stallments actually earned. In still other particulars the common-law doctrine of "Entire Contracts" has been equitably modified. (555). (t)) Master's Liability to Servant in Actions Ex Delicto. In 1837, the "Fellow-servant" doctrine originated in England in the ruling by Lord Abinger (Sir James Scarlett). It was adopted in South Carolina in 1841; was applied to railroads in England in 1850; and has taken pos- session of America since that time. In many states it has been abolished by statute as far as the employes of railroads are concerned. The doc- trine, in a modified form, was adopted by the Supreme Court of the United States in the Ross Case. That court subsequently overruled the Ross case and adopted the doctrine in its ultra form, in Conroy's case. Tn 1906, an act of Congress was passed abolishing the doctrine as to the employes of carriers engaged in interstate commerce. This act being declared unconstitutional in part, another act of Congress was passed, in 1908, which re-enacts the act of 1906 in terms which remove its un- constitutional features. In its ultra form, this doctrine shields the mas- ter from all liability for injuries suffered by his servant where such in- jury results from the act or negligence of the fellow-servant of the in- jured person — all employes of a common master in the prosecution of the same general undertaking being considered fellow-servants. In its modified form all servants of the common master are not held to be /'eHow-servants within the rule: but an upper servant who has a certain amount of dominion and control over others, is held to be the common master's alter ego, whose acts or negligence towards another employe, render the common master liable to the injured servant. This modified form of the doctrine has practically supplanted the original and ultra form. The whole doctrine has been the subject of caustic criticism by Ixii INTRODUCTION. able judges — one of whom says, that the "reasoning of that learned but somewhat eccentric Judge, Lord Abinger, is but one of the many in- stances of how little some of the most shining talents of the advocate appear to prepare the possessor for the office of the Judge." The doc- trine is said to be based upon no settled principle of the common law, and to be tainted with the eflBuvia of serfdom, villeinage, and other ob- solete brutalities of the English common and statute law toward serv- ants. The statutes which abolish the whole doctrine as to the employes of railroads and other carriers — leaving it in operation as to the em- ployes of other masters — have been held to violate no clause of the Federal Constitution or other fundamental principle of law. (557-567). It is an elementary rule in the law of negligence, that the master owes the duty to furnish proper tools and appliances to his servant. Where there is one appliance only which is approved and in general use for performing a certain function, it is the master's duty to use it. Where there are several appliances used for the same purpose, all of which are approved and in general use, the master fills his duty if he exercises reasonable care in making a selection. It is the master's culpable neg- ligence, and not a mere error of Judgment on his part, which renders him liable in such cases. (567-570). (c) Remedy of the Master Against the Servant. Under the English common and statute law prior to 1848, the condition of an employe was almost servile. Until that date the master's remedy against the servant was confined to a criminal prose- cution; while that of the servant against the master was confined to a civil action. But this has all been changed, and nowhere are the rights of workmen and servants, of all ages and sexes, so admirably protected as they are in England at the present time. In 1875 statutes were passed m that country which have been aptly described as "The Workman's Charter of Liberty." "Then, for the first time in the history of that country, did the employer and the employed sit under equal laws." By the Federal Constitution and statutes, all persons under the dominion of the United States are fully protected against slavery in all of its forms ■ — peonage, the coolie system, and all other attempted evasions of the 13th amendment. Imprisonment for debt — that is, for non-performance of any obligation arising out of a contract made by a person, — is nowTor- bidden by the constitutions of practically all the states; though, until recent years, imprisonment of debtors was common to both England and America. "No person shall be imprisoned for debt except in cases of fraud," means that no one shall be imprisoned for a cause of action ex contractu: but it does not shield one from imprisonment for the non- payment of a liability arising out of a pure tort. Statutes making it a crime for a laborer or tenant to violate his contract with his master or landlord, are but attempted evasions of the constitutional provision above quoted, and are void. The legislative power to make acts criminal and punishable by imprisonment, cannot he extended to an invasion of the rights guaranteed to the citizen by the constitution. Such statutes are in violation of the 13th amendment to the constitution of the United States, and of the act of Congress known as the Peonage Statute. The contracts of apprentices, sailors, and soldiers, are sui generis and not within the constitutional provisions, State or Federal, above referred to. Statutes making it criminal to violate a contract of hiring would, pos- sibly, be valid, as far as the 14th amendment is concerned, if aimed at master and servant alike. A statute making it criminal for a servant to obtain money or advances under a contract of hiring, — which con- tract he enters into for the purpose of defrauding his master and with the fraudulent intent never to perform it — would be valid, it seems. (570-575). The specific performance of a contract to perform personal services for another will not be decreed, except, possibly, in the case of apprentices, sailors and soldiers. "Neither the servant nor the master is subject to have enforced against him a specific execution." However, in certain peculiar instances, one who has contracted to serve another will be enjoined from serving anyone else during the contract period. (575, and see 712). (d) Master's Right to Exoneration Against the INTRODUCTION. Ixiii Servant. Where either master or servant is mulcted in damages, by a third person, in consequence of the negligence of the other, he is en- titled to exoneration. (578). (e) Remedies of Both Master and Servant Against Third Persons. "At common law, in England, the master might bring an action at law for damages against a third person for any loss he might have sustained by reason of such third person's unlawfully injuring or interfering with his servant, but this power was only to be exercised in the case of a menial servant — a domestic infra moenia." But this statement that the law in such cases is confined to menial serv- ants, must be taken cum grano salis, if, indeed, it is not to be entirely repudiated. (580). An action on the case lies against one who entices a servant to quit the master's service; and it has been said that tres- pass vi et arniis lies where the servant is taken away by force. (582). Whatever may be the law as to injuries inflicted upon a servant, it seems to be well settled that one who entices a servant from his master is liable to the master in damages, no matter what the grade of service — whether it be menial or one of much dignity. The master's rights in such cases are derived from the law governing contracts, and not merely from the law governing the relation of master and servant. The law which renders the enticer liable "extends impartially to every grade of service, from the most brilliant and best paid to the most homely." The enticer is liable if he knows of the existence of a valid contract of service; he cannot shield himself by playing the part of a "chivalrous protector of defrauded ignorance," — for, in the eyes of the law, he is known by the homely epithet of "oflSclous intermeddler." "Interference with such relations can only be justified under the most special circum- stances and where there cannot be the slightest suspicion of a spirit of mischief-making or self-interest." (583). .The unlawful interference be: tween master and servant sometimes reaches the magnitude of a private nuisance and will be stopped by injunction — for instance, the intimida- tion of employes by strikers. (586). A servant may maintain an action for damages against an intermeddler who knowingly and maliciously causes his discharge from employment. (589). It is said at page 591, that, while it is frequently stated by text-writers and in judicial opin- ions that a master may recover for the seduction of his female servant, yet, no case can be found in which such a recovery was had, unless the plaintiff was, not only the master but also, the parent, or one standing in loco parentis. Since this volume, with the exception of this intro- duction, has been printed, the editors have been furnished, through the courtesy of Mr. G. H. Burroughs, of Toronto, with the headnotes to Ford V. Gourlay, 42 U. C. Q. B., 552; from which it appears that the plaintiff did recover for the seduction of his female servant although he was not related to her, nor did he stand towards her in loco parentis. The case holds that while none of the special grounds for compensation which may be considered in the case of a parent, apply In the case of master or employer; still, the master is not restricted to the recovery of his actual pecuniary loss, but his damages depend very much upon the position in his household occupied by the person seduced. (f) Remedy of Third Persons Against the Master for the Acts and Neg- ligence of his Servants. Until a comparatively recent date it was held that the master is not liable for the wilful trespasses and torts of his servants — the limit of his liability being for the negligence or unskilful- ness of his servant. (592-595). But, by the modern decisions, the master is liable not only for the negligence and unskilfulness, but also for the wanton, wilful, and malicious acts of his servant done in fur- therance of the master's business, and while on duty. (595). Jxiv INTRODUCTION. CHAPTER VII. INJURIES TO TANGIBLE PERSONAL PROPERTY.— Sec. 1. Re- plevin, Detinue, and Allied Remedt in Equity. One who has possession of a chattel by virtue of either a special or general property therein, may maintain either replevin or trover: but one who has possession of a chattel simply for another, e. g. a servant for the master, can maintain no action against one who disturbs such possession. (598). The gravamen of the action of detinue is the detention of chattels. The plaintiff must prove three things: (1) Property in himself; (2) an un- lawful detention by the defendant; and (3) the value of the property detained — but the unlawful detention is the main and principal point in issue. (599). A judgment in an action of detinue is conclusive as to the title between the parties and their privies; but the judgment is no bar to a subsequent action for the same chattel against the same defend- ant or against a third person, unless and until the judgment has been satisfied. (600). Actus del nemlni facit injurlam — there is a loss, but it is damnum absque injuria; therefore, if the chattel be destroyed by the act of God pendente lite, the loss falls upon the plaintiff in detinue if the property were his. There is a marked distinction between de- tinue and trover; though, in many cases, the plaintiff has an option as to which he will bring. The basis of detinue is a continuing title in the plaintiff; and the alleged wrong consists wholly in the wrongful with- holding of the possession of his goods from him. In trover the alleged wrong consists in the conversion of chattels which were once the prop- erty of the plaintiff but which have been made the property of the de- fendant by the defendant's wrongful conversion. If, after being thus converted, the chattels be destroyed pendente lite by the act of God, the loss falls upon the defendant. In detinue the jury must find the pres- ent value of the chattel — the value at the date of their verdict. (601). Under the Code practice, the action of "Claim and Delivery" is said to be substituted for replevin and detinue. In such action the value of the property must be assessed as of the time of the trial — for the value stands in lieu of the property, should it turn out that the property can- not be returned. The defendant cannot compel the plaintiff to accept the assessed value, if there can be a return of the property in specie; nor can the plaintiff compel the defendant to pay the assessed value, if he offers to return the property. This is so notwithstanding any deterioration in the value of the property. It may be that, if it ap- pear on the trial that the property has been destroyed, the jury could so find, and ascertain the value of the property at the time of the taking and render a verdict for such value with interest thereon as damages for the taking and detention. If the property has deteri- oriated during the unlawful detention, the jury should assess the dam- ages resulting from the taking and detention — an element of which is the deterioration between the time of taking and the time of trial. (603). The Code remedy for the recovery of specific chattels is some- times called an "Action of Claim and Delivery." Properly speaking, there is no such action. The remedy thus called is an action to recover the possession of personal property, and is in the nature of the actions of detinue and replevin under the common law practice. "Claim and Delivery of Personal Property" is an ancillary remedy, but not essen- tial to the action. This ancillary remedy is peculiar to the Code prac- tice. It gives to the main action something of the nature of the com- mon-law action of replevin. "Claim and Delivery" of the property may be omitted and the action may be simply to recover the possession of the specific chattel — as in replevin or detinue; or to recover the vaUie of the property — as in trover or trespass. In any case, Claim and Delivery is but ancillary to the main action. (605-607). It is only in extraordi- nary cases that equity will interpose in controversies concerning chat- tels: but equity will compel the restoration of chattels to the true owner where damages would be a mockery rather than justice — e. g. a faithful INTRODUCTION. IxV family slave endeared by a long course of service or early association, or a rare piece of bric-a-brac, such as the silver altar piece remarkable for a Greek inscription and dedication to Hercules, or the like. (608). Sec. 2. Trover. — Trover is an action for damages for the conversion of chattels, and not for the specific recovery thereof. The defendant cannot force the plaintiff to accept the chattel in controversy; and so it is in actions in the nature of trover under the Code practice. To sustain trover, the plaintiff must establish" both title and possession, or the right of possession. It is one of the characteristic distinctions between trover and trespass, that trespass may be maintained on possession; but trover only on property and possession, or right of possession. Trover is to personalty what ejectment is to realty — in both, title in the plaintiff is indispensable. Title may be presumed from possession, and such pre- sumption will sustain trover without proof of title against all the world. Yet such presumption may be rebutted. If rebutted, the plain- tiff's action fails. If the defendant prove title in a third person, the plaintiff's action fails notwithstanding his possession. It has been said that any bona fide possession will sustain the action against a mere wrong-doer. Where the plaintiff has a title founded simply upon a bona fide possession, the defendant cannot defend himself by showing that a third person — -with whose title defendant does not connect himself — has a better title than the plaintiff. (609-611). "If there be a deprivation of property to the plaintiff, it will constitute a conversion though there be no acquisition of property to the defendant. If property be lost by a bailee, or stolen from him, or be destroyed by accident or by negligence, trover will not lie — trespass on the case being the proper remedy under such circumstances. To sustain trover, the defendant must have been an actor and have made an injurious conversion; or have done an actual wrong." (612). A conversion consists either in an appropriation of the chattel to the defendant's own use and beneficial enjoyment; or in its destruction; or in exercising dominion over it to the exclusion of the plaintiff or in defiance of his right; or in withholding the possession from the plaintiff under a claim of title inconsistent with his right. It is not every tortious act affecting the property of another that amounts to a conversion; thus, cutting down another's trees without taking them away, is a trespass, but it is no conversion. (613). The bare posses- sion is sufficient to maintain an action of trespass against a wrong-doer, for the gist of that action is an injury to the possession: but in trover, the injury done by the trespass in taking is waived, and the plaintiff supposes he has lost his property, and therefore, alleges that the de- fendant found it and wrongfully converted it to his own use. The gist of the action is, not that the defendant took possession of the chattel after finding it, but that he wrongfully converted it to his own use after taking possession. The measure of damages is the value of the prop- erty converted. When the defendant satisfies the judgment in trover, he pays the value of the property, and the title is ipso facto vested in him by operation of law — consequently, except when the property is re- stored and the conversion was merely temporary, trover can never be maintained unless a satisfaction of the judgment will have the effect of vesting a good title in the defendant. But as to this last proposition the authorities conflict. (614). When there has been a conversion by a sale, the owner may maintain trover, or he may dispense with the wrong and suppose the sale made by his consent and bring an action for the money for which the property was sold, as money had and received to his use. But both of these remedies cannot be pursued in the same action. (617). Sec. 3. Trespass Vi et Abmis and Trespass on the Case for In- juries TO Personal Property. The distinction between injuries which will sustain an action of trespass vi et armis and those which will sus- tain an action on the case — between injuries immediate, and injuries con- sequential — is very subtle and attenuated. One of the most apt illus- trations is thus stated: If A throw a log in the highway and it hits B, B's remedy is trespass vi et armis; but if C come along afterwa.rds and Ixvi INTRODUCTION. Is injured from falling over the log, C's remedy is trespass on the case. (618). For every tortious act which injures another's property, the perpetrator is liable to the owner in damages to be recovered in trespass vi et armis or trespass on the case. If the trespass is committed on the property while it is in the possession of the owner, "trespass" is the proper remedy; if while in the possession of another as bailee, — the owner having jjut a reversion — "case" is the proper remedy. Trespass vi et armis is usually abbreviated to "trespass," and trespass on the case, to "case." (619). Trespass will lie for a direct and violent injury whether inflicted by negligence or intentionally. Case also will lie for such an injury if occasioned by carelessness, but not if the injury result from a wilful act. (620). An action on the case, on the "custom of the land," lies against innkeepers and common carriers. In this action, such persons are treated as insurers, and are liable, — except for the acts of God and the enemies of the state, — without proof of negligence. In which respect this action differs from an ordinary action on the case against a bailee. A recovery in an action on the case may be had against an innkeeper, who is guilty of negligence, in many instances in which no recovery could be had in case "on the custom:" For Instance, one takes board at an inn under a special contract and his goods are lost, the innkeeper is not liable "on the custom;" but he is liable in a special action on the case if negligence be shown. Case "on the custom" is a remedy restricted to guests of an inn as distinguished from boarders who sojourn at an inn under a special contract. "It is sometimes dif- ficult to draw the line between guests and boarders. They frequently run into each other like light and shade." (620). The title of a deputy sheriff to property seized under execution, is a mere special property, it is true; but still his possession is sufficient to sustain trespass d. b. a. against a mere stranger. (622). For an injury to a mere reversionary right, trespass d. b. a. does not lie; because an actual possession or a right to immediate possession must be shown. (623). If a bailee mis- use the thing bailed, case lies. If the bailee refuse to surrender the thing bailed, or sell it, trover lies. If he destroy the thing bailed, then either trover or trespass will lie. If goods be lent, or delivered to an- other to keep, and he refuses to return them on demand, trespass does not lie, but trover is the proper remedy. (624). If one injure another's cattle "with" a dog, trespass lies: but if the injury be done by the dog, or other animal, without the owner's agency, though in his presence, case lies. "For it was owing to his not hanging the dog on the first notice," is the shibboleth of the bench in actions against owners of dogs for injuries caused by these interesting animals. (625). A special action on the case lies for the libel or slander of another's chattels, provided special damage be proven: but, in the absence of such proof, no action lies. "A tradesman offering goods for sale exposes himself to observa- tions of this kind; and it is not by averring them to be false, scandalous, malicious, and defamatory, that the plaintiff can found a charge of libel upon them," or recover damages therefor, unless he prove special damage. (626). "Although there is but one form of action under the Code prac- tice, whether the wrong complained of be one to be redressed, under the common-law practice, by Trespass, Trover, or Detinue, yet, even un- der the Code practice, the plaintiff's recovery will be governed, to an important extent, by the principles governing these common-law ac- tions." (627). CHAPTER VIII. INJURIES TO RIGHTS GROWING OUT OF CONTRACT.— Sec. 1. Ac- tion OF Covenant. Covenant lies only upon a sealed contract. If there be no seal, covenant will not lie though the contract contain the state- ment "signed, sealed, and delivered." It is a disputed point whether covenant or assumpsit lies against one who orally accepts a deed poll purporting to contain covenants to be performed by him. (628-630). Either Aeht or covenant will lie on a sealed instrument where the amount INTRODUCTION. Ixvii due thereon is ascertained and certain — liquidated — by the terms of the instrument. So, in ancient times, of penal bonds- — the plaintiff could sue in debt for the penalty, or in covenant for damages. (630). Although an infant may voluntarily bind himself an apprentice, yet neither at the ccmmon-law nor under 5 Eliz. c. 4, would covenant lie on the obli- gation of an infant for his apprenticeship — that is, no action at law lay against an infant, upon such obligation, for damages. (631). Sec. 2. Action of Debt. The action of debt lay against principals ■only. It did not lie against sureties. Such was the law at a very early period when the action of debt was the form of action provided for all matters in controversy arising out of mere personal contracts. (632). It has been said that only the precise sum demanded could be recovered in an action of debt: but that is not correct. The rule Is not that the plaintiff must recover the sum demanded or not at all; but that the proofs must agree with his allegations. The plaintiff may recover less. The exact sum demanded in the writ need not be found by the jury, when, from the nature of the demand, the amount is uncertain: but "When the contract, as stated in the declaration, fixes the amount due, the verdict must agree with the writ, or judgment will be arrested. (634). Debt lies upon a penal bond. By the common-law, the obligor was forced to pay the whole penalty if he failed to comply with the condition at the time specified. This was remedied by 8 and 9 Will. 3. Prior to this act, the obligor had to resort to chancery to be relieved from the penalty upon payment of what was justly due. The statute remedies that evil by permitting no other recovery, at law even, than the actual damages sustained. There is a distinction, however, between the penalty in a bond to secure the performance of conditions, and a statutory penalty secured by bond. In the first case, damages only are recover- able; In the other, the whole penalty is recoverable. (636). It has been held that there is a difference between covenants in general and covenants secured by a penalty or forfeiture. In the latter case, the ob- ligee has his election to bring either debt for the penalty and recover the penalty; or, if he does not choose this course, he may proceed upon the covenant and recover more or less than the penalty. But can the re- covery exceed the penalty of the bond? This is a question upon which the authorities differ. It has been answered both in the affirmative and in the negative by able judges. (637-640). Debt lies for a penalty given by a statute; and upon the judgment, domestic or foreign, of a court of record or not of record. (640). Debt does not lie for money nayable in installments, till the whole debt is due, unless the payment be secured by a penalty. The operation of this rule cannot prove in- iurious; for, if the contract be under seal, upon non-payment of the in- stallments as they respectively become due, the party has his remedy by action of covenant; or, if by parol, by that of assumpsit. (642). Debt Is preferable to Covenant or Assumpsit where the plaintiff has his elec- tion to adopt any one of the three — because judgment by default final may he entered in debt; whereas the judgment in the other two actions is usually required to be by default and inquiry. (644). Debt is the proper remedy on an official bond in which the state is the obligee. The action must be brought "State ex rel." (645). Summary judgment, rendered without previous service of process or other notice, is a remedy allowed by the law of England and of this c,ountry to enforce official bonds and other liabilities of public officers where the recoveiy is the property of the government. (646). Sec. 3. Action of Assumpsit, (a) There Must Be a Contract, Either Express or Implied. To support the action of assumpsit there must be a contract, though it may be either express or implied. If one perform services for another with the intention not to charge therefor, he can, nevertheless, recover the value of his services unless his intention not to charge was known to the other person: but if his good intentions were known to the person served, he cannot recover — for one cannot do an act of charity and afterwards charge for it. (648). A contract to pay for services may be inferred from the conduct of one benefited Ixviii INTRODUCTION. thereby — as where he knows that another is working for him with the- expectation of being paid for his services, and yet does not notify such workman to desist, hut accepts the benefit of his labor. (650). Using goods not ordered will subject one to assumpsit for their value. (651). Assumpsit lies for necessary services rendered to one who is insensible; or wholly incapable of taking care of himself at the time; or who is a non compos. (653). Labor on a farm is more valuable in the spring and summer than in the winter. Therefore, it would be unjust to per- mit a farm hand, hired for a year, to labor through the winter months, quit without cause in the spring, and then recover his full monthly wages for the time served. It is well settled that where there is an ex- press contract it must be declared on, and that quantum meruit or valebat will not lie unless performance of the contract has been pre- vented by the other party. But it is also said to be settled, that quan- tum meruit or valebat will lie on a parol contract which has been fully performed, by the plaintiff, and that it is not necessary, in such case, to declare upon the special contract. (654-657). Assumpsit lies on an "account stated." If an account be presented and no objection be made thereto within a reasonable time, assumpsit will lie for the amount of the account, without proof of the sale and delivery of the goods. (657). It is held by some courts that the whole extent of the doctrine of "waiv- ing the tort and suing in assumpsit" is, that one whose goods have been taken from him or unlawfully detained, whereby he has a right to an action of trespass or trover, may, if the wrong-doer sell the goods and receive the money, waive the tort, affirm the sale, and bring assumpsit for "money had and received" for the proceeds. It is also said that no case can be shown in which assumpsit lay for goods sold if the goods: were taken but not sold by the wrong-doer — except against the executor of a deceased wrong-doer. (658). It is said by other courts that, while assumpsit is not generally the appropriate remedy, yet, it sometimes lies for the value of goods obtained tortiously; and that there are many such cases in which the plaintiff may waive the tort and sue for goods sold, etc. "As the defendant cannot take advantage of his own wrong, the plaintiff may waive the tort when his goods have come wrongfully into the defendant's possession, and sue for goods sold — treating the de- fendant, who has wrongfully possessed himself of the goods, as the pur- chaser." (659). Cb) Money Had and Received. Assumpsit for money had and received is "a kind of equitable action to recover back money which ought not in justice to be kept." It Is a very beneficial remedy, and, therefore, much encouraged. It lies only for money which ex aequo et bono the defendant ought to refund, — e. g. money paid by mistake; or upon a consideration which totally falls; or got through imposition, ex- tortion, oppression, or undue advantage taken of the plaintiff's situation, in violation of laws made for the protection of persons in his situation. The gist of this action is, that the defendant, under the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money — -in other words, the defendant has money which would burn a hole in an honest man's pocket, and the law turns out the fire brigade to avert the impending evil. But there must be some privity existing between the parties in relation to the money sought to be recovered. This privity may be express or implied. It is express when the defend- ant has received the money as agent of the plaintiff; or where he cotc- sents or agrees to appropriate money in his hands, belonging to another, to the payment of the plaintiff at the owner's request. It is implied in those cases only in which the defendant has received money from the plaintiff, or money belonging to the plaintiff, by mistake; or by means of fraud or duress practiced; or upon a consideration which has failed; or by tortiously converting the plaintiff's property into money. In other words, the money sought to be recovered in this action upon an implied promise, must either be the identical money of the plaintiff of which the defendant has improperly possessed himself; or the proceeds of some property of the plaintiff; or money issuing out of some fund or emolu- ment belonging to the plaintiff. (661-665). This action does not lie tO' INTRODUCTION. ]xix recover money received by one person, under a claim of right, which in law should have been paid to another. (665). Even if a tort be com- mitted in obtaining money, the injured person has a right to waive such tort and sue for money had and received. Such an action is ex con- tractu and not ex delicto. E converse, when the breach of a contract involves a tort, the contract may be waived and an action be sustained for the tort. (666). (c) Money Paid to Another's Use. To sustain this action of assumpsit for money paid to defendant's use — that is, for "money paid, laid out, and expended" to another's use — there must have been a payment of money by the plaintiff to a third party at the request of the defendant and upon his promise to repay the amount. Both the request and the promise may be either express or implied. An officious payment of another's debt is not such a payment to his use as will sup- port the action. If a purchaser of chattels pay off a lien thereon, such payment is not officious, because necessary to the protection of his title. A subsequent ratification or recognition of a payment is equivalent to a request. (668-669). (d) Assumpsit for Goods Bargained and Sold, and for Goods Sold and Delivered. The "Common Counts" are the counts in assumpsit: For money had and received; for money lent; for money paid to another's use; for goods sold and delivered; for goods bargained and sold, etc. Assumpsit for "Goods Sold and Delivered" lies for the price where goods have been delivered in consummation of a sale. As- sumpsit for "Goods Bargained and Sold" lies for the price of goods sold, but not delivered. To maintain a count tor goods sold and delivered, it is essential that the goods should have been delivered to the defendant or his agent, etc.; or that something equivalent to a delivery should have occurred. If goods be sold, but not delivered, the plaintiff will be non- suited if he has declared only for goods sold and delivered, even though the goods be paclied in boxes, furnishd by the purchaser, ready for de- livery; for in such a case the declaration should have been for goods bar- gained and sold. Even the count for goods bargained and sold will fail when there has been no delivery, unless it appear that there has been a complete sale and acceptance so as to vest the title to the goods in the defendant. (669). Assumpsit for the price of goods sold and delivered lies whether the sale be for cash or on a credit. The only difference be- tween a sale for cash and a credit sale is, that on a cash sale assumpsit may be brought at once, while on a credit sale it Cannot be maintained until after the time of credit has expired. (671). Where it is agreed that a note or bill, payable at a future day, will be accepted for the price and the purchaser fails to give such note or bill, the seller cannot maintain assumpsit for goods sold and delivered until the time of credit has expired; but he can sue at once for damages for the breach of the contract of sale resulting from the failure to give the bill or note. In such an action he may recover, as damages, the whole value of the goods, unless, perhaps, there should be a rebate of interest during the stipu- lated credit. The only difference between suing at one time or the other consists in the form of the remedy. (672). A creditor whose de- mand against his debtor consists of an account of several items, either for goods sold or labor done at different times, may sue upon each item, or upon any number of items, or for the aggregate amount due, in one action or in several actions. As each item is a separate debt there is nothing to forbid a separate action on each item. However, if a plain- tiff wantonly or maliciously bring a great number of actions on separate items which might have been consolidated into one action, the court will consolidate all of such actions into one, at the plaintiff's cost. If, how- ever, the debt is an entire one, consisting of but one item, it cannot be divided, and separate actions maintained upon each part. When sepa- rate actions are brought upon segregated items of an account, such a "performance" is called "splitting up" the account. (673). When a sale of goods constitutes only one transaction, although a multitude of separate articles may be included in the sale, and nothing appears to in- dicate that either party intended each item to constitute a separate transaction and cause of action, the account cannot be "split up." (674). Remedies — f. Ixx INTRODUCTION. If the seller render to the purchaser a statement showing a balance struck, and claim that balance as a debt, the purchaser is held in law to admit the correctness of the balance and to impliedly promise to pay the same; unless he object to such statement within apt time. In the ab- sence of such objection, the balance struck becomes a new and indivisible cause of action — it cannot be split up. (676). Sec. 4. Remedies on Negotiable Instruments. — At common law in- debitatus assumpsit was the sole remedy upon a negotiable instrument; and the plaintiff was obliged to prove the consideration of the instru- ment. The statute 4 Ann. c. 9, allows the plaintiff to declare in debt upon the instrument itself. Before the statute, the instrument was only evidence of the alleged assumpsit. After the statute, the declaration was in debt upon the instrument and the instrument itself was sufficient evidence to support the action without any further proof of the consid- eration; and in this respect alone did the statute effect the remedy. The statute does not take away the old remedy, but gives an additional remedy with leave to the plaintiff to pursue either, as he may elect. In Indebitatus Assumpsit upon a negotiable instrument, a recovery may be had upon either of several counts: Upon the instrument itself; for money paid, etc., to the defendant's use; for money lent or advanced; for money had and received to plaintiff's use. The action will lie by and against, not only the original parties to the instrument — such as maker and payee; but also by and against those secondarily connected therewith — such as indorser and indorsee. In all counts, and between all parties to the instrument, the instrument itself is presumptive evi- dence sufficient to sustain the action; but such presumption may be re- butted. Proof of a consideration is not essential; but if the defendant introduce testimony tending to show that the instrument was nudum pactum, the plaintiff must show a valid consideration. An action of Debt lies on all negotiable instruments against those primarily liable thereon, but not against those secondarily liable. (676-679). In ac- tions on negotiable instruments, it is the practice to require the produc- tion of the instrument at the trial and to withhold judgment until the instrument is filed of record; but a failure to file the instrument at the trial will not invalidate the judgment — as. the filing may be done subse- quently nunc pro tunc. (679). The remedy on a lost bond, is in equity, because at law the obligor has a right to demand protert of the bond, and, as no profert can be made if the bond be lost, the remedy at law is gone. The courts of equity held on to this jurisdiction even after the law courts had dispensed with profert. The jurisdiction in equity as to lost negotiable instruments arose from the right to require indemnity from liability on the paper sued on, in case such paper should after- wards turn up in the hands of another. Recovery may be had at law upon a lost instrument if such instrument be not negotiable. Under the Code practice, if it appear that the instrument sued on has not been destroyed, was negotiable, and cannot be produced, an indemnity may be required by the court. (680). In declaring upon an unsealed con- tract it is necessary to allege a consideration or the contract will appear to be nudum pactum and the declaration will, consequently, be insuffi- cient. This rule of pleading does not apply to negotiable instruments. (681). Sec. 5. Pekfoemance of Conditions, When it Must Be Alleged. As a general rule, if there be a condition precedent incorporated into an agreement, it is necessary to allege and prove its performance as a pre- requisite to the plaintiff's recovery. If there be covenants to be per- formed by each party at the same time and the same placie, such cove- nants are dependent and, to enable one of the parties to maintain an action against the other for a breach of the contract, the party who sues must show that he has performed, or offered to perform, his part; or that there is some legal excuse for his not having done so. But if the cove- nants be independent, such allegations and proof are unnecessary (682- 685). Sec. 6. Summary Proceedings to Collect the Purchase Money Due INTRODUCTION". Ixxi ON Pkoperty Purchased at a Judicial Sale. A purchaser at a judicial sale may be forced to complete his purchase by a summary order In the original cause; or an action at law may be maintained against him for the price. In some jurisdictions no separate action will be allowed. The modern practice of English courts is to order a resale of the prem- ises at the cost of the purchaser and to hold him liable for the defici- ency. Upon a judicial sale the purchaser may be put into possession by a writ of assistance; or he may recover possession by an action of ejectment. The only difference between judicial sales of chattels and those of realty, is, that the property in chattels passes by the sale; whereas on the sale of lands a deed is necessary to convey the title. The rights of the buyer are fixed in both instances, when the bid is ac- cepted by the court by a confirmation of the sale. (685). Sec. 7. Actions op Deceit, and of Deceit and False Wakbanty. It is said that an action on the case lies for false representations in the sale of property, whereby the vendee is defrauded and deceived, even though the vendor be not aware of the falsity of the representations which he makes. Such representations may be treated as warranties, and as- sumpsit brought thereon, if the vendee so elect. (690-693). Joinder of deceit and false warranty is permitted under the Code practice; and fraud and deceit and false warranty may be set up as a counterclaim where they grow out of the transaction which is the basis of the plain- tiff's action. To sustain an action upon a false warranty it Is not nec- essary to prove the scienter. If there be no warranty and the plaintiff relies upon the deceit, proof of the scienter is a sine qua non. (693). The law implies a warranty of title when chattels are sold: but as to the quality of the goods no warranty is implied. A mere affirmation as to quality does not amount to a warranty unless it be shown that it was so intended. The remedy on a warranty is indebitatus assumpsit: but if there be any fraud in the case, the buyer may bring an action of trespass on the case. Case, indeed, is the only remedy If there be no warranty of soundness. (693). In some jurisdictions it is held that the charge of a fraudulent Intent, in an action of deceit, is sustained by proof of a statement made as of the party's own knowledge, which is false — -provided the thing stated be not a mere matter of opinion, esti- mate, or judgment, but susceptible of actual knowledge; and that, in such cases, it is not necessary to make any further proof of an actual intent to deceive. The fraud consists In stating that the person knows a thing to exist when he does not know it to exist. If he does not know that it does exist, he must, ordlnarilly, be deemed to know that it does not. A mere belief of its existence will not excuse a statement of actual knowledge. (695). If an unsound chattel be sold, the purchaser must prove either a warranty of soundness or a deceit in order to maintain an action. In regard to a deceit, the distinction is: Where the unsound- ness is patent, — that is such as cannot be discovered by the exercise of ordinary diligence — mere silence on the part of the vendor is not suffi- cient to establish the deceit, although he knows of the unsoundness — because the thing speaks for Itself and it is the folly of the purchaser not to harken thereto. In such cases the scienter must be proven and there must be a false statement, or a resort to some trick to conceal the unsoundness or to prevent an examination. But where the unsound- ness Is latent, — that is, such as can not be discovered by the exercise of ordinary diligence — the mere silence of the vendor is sufficient to es- tablish the deceit, provided he knows thereof. (697). There can be no recovery for a false statement alone. Damage also must be alleged and proved. (700). To sustain deceit by false representations three things are essential: The representation must be false; the party making it must know it to be false; the false representation must have induced the vendee to purchase. The measure of damages is the difference between the value of the chattel at the time of the purchase it sound, and its value if diseased at that time. It is immaterial what disposition the purchaser subsequently makes of the chattel — whether he works It off upon some one else and gets more than Its value, or whether he gives it Ixxii INTEODDCTION. away. (700). "Puffing one's wares" — i. e. expressions of commenda- tion or of opinion, or extravagant statements as to value or prospects, or the like — is not regarded as fraudulent in law: but representations purporting to be statements of fact as distinguished from mere matters of opinion, and which are intended to be, and in tact are, accepted as facts, do not come within the exemption as to "pufflng one's wares." A defrauded purchaser has a selection of remedies: He may rescind the trade and recover the price or such portion thereof as he has paid; or set up the fraud as a defense to the vendor's action for the price or such part of it as remains unpaid; or he may hold the vendor to the contract and sue him for damages sustained in consequence of the fraud. But in order to rescind, the purchaser, (1) must do so within a reasonable time after he discovers the fraud or could have done so by the exercise of due diligence; (2) he must disaffirm in toto; (3) he must be able to restore the price; (i) he must have done no act amounting to a ratification. (702). It has been said that no action has ever been maintained by a seller against the purchaser for a cheat brought about by the misrepresentations of the purchaser as to the value of the thing sold. But It has also been said that this doctrine does not go so far as to protect a vendee who knows that there is a gold mine on land he is seeking to purchase and who denies such knowl- edge when interrogated by the vendor with regard to the matter. (705). Sec' 8. Conspiracy. One may maintain an action on the case against several for conspiring to do, and actually doing, some unlawful act to his damage. But no action lies for a mere conspiracy unattended with any consequent damage. "A simple conspiracy, however atrocious, un- less it resulted in actual damage, never was the subject of a civil ac- tion." "An act which, if done by one alone, constitutes no ground of action on the case, cannot be made the ground of such action by alleg- ing it to have been done by or through a conspiracy of several." It is frequently criminal for many to combine to effect even a lawful end; for it Is doing a lawful thing by unlawful means. But that offense is to the public, and a private person cannot complain thereof unless it operates to his injury — that Is to say, when as to Mm individually the object of the conspiracy is unlawful and its effect an injury. (707). Sec. 9. Injunction Against Breach of Contract. If one sell his business and good will, he may lawfully contract not to engage in the same business in competition with that which he has sold. Such con- tract is in partial restraint of trade, it is true, but it is one which has been recognized as not inimical to public policy. The remedy of the purchaser and covenantee in such cases is an Injunction forbidding the seller to engage in business in violation of his covenant. Contracts of this sort must be no more extensive than is reasonably required to pro- tect the purchaser in the enjoyment of the business purchased. (710). Equity will negatively enforce the performance of certain contracts of service by enjoining their breach: but their performance positively, by decree of specific performance, is beyond the power of the courts to en- force. (712). Sec. 10. "Breach of Promise." Whatever doubts may exist as to the antiquity of the remedy, it has been settled for a long time that an ac- tion lies to recover damages for the breach of a contract to marry. (714). Such an action is commonly called an action for "Breach of Promise," and its usual denouement is termed by the elder Mr. Weller a "Conwiction o' Breach." CHAPTER IX. REMEDIES IN SPECIAL CASES.— Sec. 1. Bills of Advice to a Fidu- ciary. When a fiduciary Is in doubt as to what course he should pur- sue in a matter requiring his immediate action, he may avoid the evil consequences of error by filing a bill in equity to obtain the advice of the court. The court will advise him, and such advice will be a com- plete protection and res judicata as to all who are parties to the suit. INTEODUCTION. Jxxiii (716). The courts will not give advice upon such applications except when their present action is necessary for the protection of the plain- tiff — they will not give an abstract opinion, or leap before coming to the hedge. (718). Sec. 2. Caveat to the Probate of a Will. The proceeding to probate a will, or to oppose or set aside such probate, is not like an ordinary action or special proceeding to which there are regular parties plaintiff and defendant; nor is the purpose of it to litigate a cause which the plaintiff may abandon by suffering a nonsuit, or otherwise. It is a proceeding in rem to which, strictly speaking, there are no parties; and its chief purpose is not to settle the conflicting claims of those claiming under or against the will, but to ascertain whether the sup- posed testator died testate or intestate; and, If he died testate, whether or not the script propounded, or any part thereof, be his will. Any person before the court may withdraw from the proceeding upon pay- ment of his proportion of the costs; but in that case the script is still left with the court to be disposed of according to law. The persons be- fore the court cannot control or direct the proceedings; that is the sole province of the court. (720). Persons upon whom a notice "to see proceedings" is served, are hound by the proceedings. It is true they may not be actors in the cause, but unless they do something to pre- clude themselves, they may become active at any time before the judg- ment is pronounced — for until that is done, any person Interested is entitled to be heard for or against the script. The proceeding being in rem, any one may intervene to protect his interest while the thing con- tinues sub judice. (721). When two wills are propounded — the pro- pounders of the one iDeing caveators of the other — the issues as to both scripts may be tried in one proceeding. (722). The status of the executor while caveat proceedings are pending is a matter usually regu- lated by statute or local practice. (725). Sec. 3. Pabtition. At common law, partition was effected through the courts by the writ of partition, which has become obsolete. The more usual mode of enforcing partition in England came to be by resort to the courts of equity. In this country it is usually effected by proceed- ings prescribed by statute, or by the courts of equity or those exercis- ing equity jurisdiction. In the absence of a statute, it would seem that courts of equity have no power to decree a sale for partition. Where such a power is conferred, it must be exercised reluctantly, and a sale will be ordered only when it is necessary to effect an equitable division. (726- 732). Where a designated number of acres of a tract of land is conveyed to one and the residue of the land is given to another, — as eighty acres to be cut off of the north end of a tract — the owners are called "tenaats in common with a partial division." As it is necessary that the dividing line be established between them, this will he done by the courts in a proceeding for partition. (732). In this country, lands held for part- nership purposes are deemed converted into personalty only to the ex- tent necessary to pay the partnership debts and adjust the partnership accounts. All lands remaining after the debts are paid and accounts adjusted may be divided by partition proceedings. Formerly the same rule held in England, but of late the English courts hold that partner- ship lands are absolutely converted, into personalty and devolve as such on dissolution of th« firm. (734). Caveat emptor applies to sales — and not to partition. In sales of realty no warranty is implied. In sales of chattels warranty of title, but not of soundness, is implied. In partition of realty a warranty of title is implied. In partition of chattels a war- ranty of both title and soundness is implied. If, through mistake, a parcel of land or a chattel be allotted to one of the parties at a valua- tion based upon an erroneous impression as to the number bf acres of land or soundness of the chattel, such party can obtain compensation from the others, in money. In adjusting such matters, the property is valued as of the time of partition; and that value, plus interest to the time of contribution, is the amount the injured party is entitled to re- ceive — less his share of the incidental loss. The jurisdiction for parti- Ixxiv INTRODUCTION. tion of chattels is In equity. (736). Land is not to be divided so as to give each tenant a share in every parcel of the common property: but it must be so divided that each shall receive an equal share, in value, of the whole. In order to bring about such a result, charges may be made upon allotments of greater value in favor of those of inferior value. Such charges are called owelty. (738). The peculiarities of a partition in equity are: (1) That such part of the land as may be more advantageous to a party on account of its proximity to his other land, or for any other reason, will be directed to be set off to him if that can be done without injury to the others; (2) that when the lands are in several parcels, each party will not be given a share of each parcel, but only his equal share of the whole; (3) that where a partition exactly equal cannot be made without injury, a gross sum or a yearly rent may be charged upon the allotments of greater value in favor of the shares of inferior value, as owelty; (4) that where one tenant has improved the common property, he shall receive compensation for such improvements — either by having the improved part allotted to him at its value before improvement, or by compensation decreed to be made for his improve- ments. A tenant in common who has made improvements is entitled to a partition in equity, only when the improvements were made honestly for the purpose of improving the property, and not for embarrassing his co-tenants, or encumbering their estate, or hindering partition. If it appear that the premises cannot be otherwise fairly divided, a sale must be ordered and a proper allowance made out of the proceeds for the value of the improvements put upon the premises. (739). What- ever may have been the old practice, under the present practice the pro- cedure for enforcing owelty charges is by a writ of ven. ex. issued upon a motion in the cause. Such method should always be observed, except in cases involving complicated litigation. (742). It is well settled, that equity has exclusive jurisdiction of the partition of chattels, even though the defendant denies the plaintiff's title. The entire absence of any remedy at law for the partition of chattels induced courts of equity to assume jurisdiction in such cases. "At what time and under what circumstances this jurisdiction was first assumed, we are unable to state; but that it exists and is exercised by the courts of chancery both in England and the United States, is undisputed." The matter is now generally regulated by statute. (743). Sec. 4. Sale of Real Estate and Chattels Belonging to Infants. — Whatever may be the doctrine of the English court of chancery, or whatever contrariety of opinion may prevail in the different states, as to the jurisdiction in equity to decree a sale of an infant's land, such jurisdiction exists in Alabama. It rests upon the power and duty of the courts of equity to protect infants — to preserve their estates while they are under disability. Reversions and remainders belonging to infants may be thus sold, though the courts act reluctantly and cautiously in such cases. A sale of an infant's realty will be decreed when such sale is necessary for the maintenance and education of the infant or to con- serve his interests. The reasons controlling the English court of chan- cery for repudiating jurisdiction in such cases seem to have been, that on the death of the infant, the course of descent would be interrupted by a sale, and if converted into m,oney the infant could bequeath it during hjs minority. These reasons subordinate the interest of the in- fant to that of his heirs; while, in Alabama at least, the court looks only to the care, protection, and advantage of the infant. In some states this matter is regulated by statute. When not so regulated, the ruling of the Alabama court would seem to be the proper one to follow (744- 749). Sec. 5. Inquisitions op Lunacy. — The custody of the lands of natural fools (idiots) was turned over to the King, by 17 Edw. 2, with a right to take the profits, and the duty to provide for the idiot. Upon the idiot's death the lands went to his heirs. By the same statute the King was made trustee of the lands of lunatics, but without any beneficial interest in such lands. The method of procedure for taking charge of INTEODUCTION. IxXV an idiot's or lunatic's land was a writ to the escheator or sheriff of the county wherein such idiot or lunatic resided. The object of the writ was to ascertain by Judicial investigation whether or not the person proceeded against was an idiot or lunatic; for the King's right to the control of such persons and their estates did not commence until office found. Sub- sequently, authority was given to the Chancellor to issue the writ or commission to Inquire as to the fact of idiocy or lunacy, and the method of procedure was by petition suggesting the lunacy, etc. Thus tfie law came to us from Bnglajid; and after the Revolution the care and custody of persons of unsound mind and the control of their estates became vested in the people, who have left it to the courts of equity or have regulated it by statute. The modus operandi is an inquisition of lunacy, which is an essential step preliminary to assuming control of the person and estate of a non compos. It is a judicial determination that the per- son proceeded against is one of that class whose care and custody has been delegated to the courts. Although it involves the loss or suspen- sion of civil rights over person and property, it acts only upon the statjis of the individual. The whole world is bound by the inquisition. The law is set in motion by information, of a more or less formal char- acter, filed with the court by some one who assumes to act in the matter but who does not thereby become a party to the proceeding, and who de- rives no direct benefit therefrom — the advantage to him, if any, is only such as would result if any other person had first acted in the matter. (749). The jurisdiction over the persons and estates of lunatics, etc., which was vested in the Chancellor, is exercised, under the Code prac- tice, by such courts as the statutes designate. "The same general prin- ciples which prevailed in chancery are retained. The fact of lunacy, etc., must be ascertained judicially before a court can deprive the luna- tic of the custody of his estate or submit his person to the control of a committee. The person proceeded against must have legal notice of the proceeding, which notice, as a general rule, must be personally served; though where the insanity is of such an aggravated type as to render personal service harmful or useless, it may be dispensed with. "No pre- caution should be omitted which may apprise the party of the proposed action and enable him to appear and defend." (754). Sec. 6. Sale of Real Estate by the Personal Representative to Make Assets fok the Payment of the Debts of a Decedent. — The practice in proceedings for the sale of real estate by a personal representative, to make assets for the payment of a decedent's debts, is regulated by stat- ute in the several states. The cases selected are deemed sufficient to present all important points which usually arise in such proceedings. (757-767). Sec. 7. Cheditoes' Bills.' — Creditors' bills are of two kinds, General Creditors' bills and Judgment Creditors' bills. Gteneral Creditors' bills are for the purpose of winding up the insolvent estates of deceased per- sons, the affairs of a corporation, and the like. In such cases there are many persons standing in the same situation as to their respective rights in, or claims upon, a particular estate or fund, and the rights of one cannot be determined until the rights of all are settled or ascer- tained. Of this nature, also, are bills brought to enforce trusts or as- signments for creditors, and other instances in which there Is a com- munity of interest, or in which the law Imposes upon the courts the duty of taking a fund into custody and distributing it according to the respective interests of the parties. In such bills no priority can be ac- quired by the one who institutes the proceeding or who makes himself a party before others come in. Judgment Creditors' bills are instituted by one or more creditors against a living debtor. Here the field is open to all, and he who institutes the proceeding secures a priority as the reward of his diligence. Such bills are in the nature of an equitable ft. fa., and are entertained in equity for the purpose of subjecting equi- table and other interests which cannot be reached and sold under execu- tion at law; and also for removing obstructions to legal remedies, as by setting aside fraudulent conveyances, and the like. When thus used, it Ixxvi INTEODUCTION. Is necessary, under the equity practice, that the creditor should first ob- tain judgment at law, and that he sliow that an execution proved in- effectual. This is dispensed with under the Code practice. (767). The rule of the Federal courts of equity is this; "When it is sought by equitable process to reach equitable interests of a debtor, the bill, un- less otherwise provided by statute, must set forth a judgment in the jurisdiction where the suit in equity is brought, the issuing of an execu- tion thereon, and its return unsatisfied; or must contain allegations showing that it is impossible to obtain such a judgment in any court within such jurisdiction." This ruling is not affected by the practice of the courts of the state in which the federal court is held — for the equity jurisdiction and practice of the federal courts must remain distinct from their legal jurisdiction and practice. (771). "The court will generally, at the hearing, allow a bill, which has been originally filed by one in- dividual of a numerous class, in his own right, to be so amended as to convert It into a creditors' bill." The filing of a creditors' bill stops the running of the statute of limitations as to all creditors who subsequently make themselves parties and prove their claims. As long as any assets remain undistributed, any creditor is at liberty to come in, prove his claim, and participate in the assets — not disturbing any former divi- dend: but no one can share in the assets unless and until he makes himself a party to the proceeding and proves his claim. Any creditor who makes himself a party has the right to contest the validity of the claim of any other creditor except that of the plaintiff whose claim is the foundation of the decree. (772). Although the language of the de- cree be, that those who do not come in as parties by a given time shall be excluded from participating in the fund, yet the practice is to permit a creditor to come in as a party to the proceeding and participate in the fund as long as there happens to be any fraction of the fund in the hands of the court. (775). Sec. 8. Remedy of Creditoes Under 13 Elizabeth. — Where courts of law and equity are separate, a creditor has his election; (1) To reduce his debt to judgment and sell the property fraudulently conveyed, un- der execution. If he purchase at such sale, he may bring ejectment and test the validity of the alleged fraudulent conveyance; (2) he may file a bill in equity attacking the alleged fraudulent conveyance, and have a decree for the sale of the property should the fraud be adjudged. If the creditor proceeds at law and purchases the property of the debtor under execution, a court of equity will not entertain a bill, by either the purchaser or the alleged fraudulent donee, to pass upon the validity of the alleged fraudulent conveyance on the idea of removing a cloud from the title. So it is under the Code practice, where the courts exer- cise both legal and equitable jurisdiction. But some courts hold that one who purchases land under execution may go into equity to attack the title of his debtor's fraudulent donee. In cases where the legal title to the property is such that it cannot be seized under execution, resort to a court of equity is necessary — as where the legal title never has been in the debtor, having been conveyed to another in secret trust for the debtor, with the fraudulent intent to screen it from his creditors. (777- 780). Some courts hold that, in the absence of a statute, an adminis- trator cannot maintain an action for setting aside a transfer of chattels made by his intestate with intent to defraud creditors. In such cases the defrauded creditors must themselves proceed against the fraudulent transferee as executor de son tort. Other courts permit the adminis- trator to attack the fraudulent transfers of the decedent. (780). CHAPTER X. EXTRAORDINARY REMEDIES.— Sec. 1. H.a,beas Corpus.— This rem- edy has been sufficiently treated in Chap. 5, § 8, a; Chap. 6, § 1, a, and § 2, a. Sec. 2. Prohibition. — A writ of prohibition issues from the highest common-law courts, and Is the proper remedy to restrain a tribunal of INTRODUCTION. Ixxvii peculiar, limited, or inferior jurisdiction from taking judicial cogniz- ance of a case not within its jurisdiction. The writ is properly sued out in the name of the crown or the state; the only necessary defendant is the tribunal whose proceedings are sought to be restrained, controlled, or quashed; and there is no class of cases in which the authority to issue the writ is better established than those in which courts martial, ecclesiastical courts, or inferior common-law courts assume to take cognizance of criminal prosecutions over which they have no jurisdic- tion. (783). The writ of prohibition is the converse of mandamus — it proMMts action, while mandamus compels it. It differs from an in- junction in that it issues to a court to prevent it from proceeding in a matter, while an injunction issues to a person forbidding him to do some act. The writ of prohibition does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal, or by recordari or certiorari as substitutes for an appeal. Nor is it a writ of right granted ex debito justitiae, like habeas corpus; but it is to be granted or withheld according to the circumstances of each particular case. Being a prerogative writ, it is to be used, like all such, with great caution and forbearance, to prevent usurpation and to secure regularity in judicial proceedings, where none of the ordinary legal remedies will afford the desired relief. The writ does not issue to re- strain ministerial acts, but to restrain judicial action where such action would be a usurpation not to be adequately remedied by an appeal. The usual course is to issue a notice to the lower court to show cause why the writ should not issue, and to order a stay of proceedings in the meantime. It is never used as a remedy for acts already done, but only to prohibit the commission of an act threatened, or the continued prose- cution of a pending proceeding. (785). Sec. 3. Mandamus.^ — A mandamus was formerly a prerogative writ, but in modern times it rises no higher than an extraordinary remedy, (and in some jurisdictions it has sunk to the low level of an ordinary remedy (see p. 801, near top). It was introduced to prevent disorder from a failure of justice and a defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy though one is needed. If there be a right and no other specific remedy lies, the writ should issue. Writs of mandamus have been granted to admit lecturers, clerks, sextons, scavengers, etc.; to restore an alderman to precedency, an attorney to practice in an inferior court, and to permit one so entitled "to preach in a meeting-house appointed for the religious worship of protestant dissenters commonly called Pres- byterians;" and, if no one be so entitled, to force the congregation, stewards, elders, deacons, vestrymen, or whoever possesses the authority so to do, to elect some one to fill the pulpit — -for "should the court deny this remedy, the congregation may be tempted to resist violence with force, and a dispute 'who shall preach Christian charity,' may raise im- placable feuds and animosities in breach of the public peace, in the reproach of the government, and to the scandal of religion," says Lord Mansfield. (787). There may be found isolated expressions to the ef- fect that this writ will lie only where there is a positive statutory duty and an entire absence of any other remedy: but these expressions are not a correct statement of the law, for where there is a clear right and no other adequate specific remedy at law exists, the writ should issue. It is the inadequacy, and not the mere absence of all other legal remedies, and the da.nger of the failure of justice without it, that must usually determine the propriety of the writ — for where none but specific relief will do justice, such relief should be granted if practicable. (790). The writ will issue from a superior to an inferior court commanding it to proceed to judgment of some kind, but not to command what judg- ment it shall render. The discretion of a judge as to what judgment he shall render cannot be controlled by a mandamus; but if he declines to exercise his discretion or to act at all, when it is his duty to do so, the writ will issue to compel him to act. (792). The usual course in mandamus proceedings is to first pass upon the right involved and, if It Ixxviii INTRODUCTION. be adjudged that the plaintiff has a clear right for the enforcement of which there is no other adequate remedy, to then order the defendant to do those things which alone will afford the full measure of relief to which the plaintiff is entitled. But in the first instance the defendant is only ordered to do the act commanded or else to show some va,lid excuse for not complying with the order. Upon his failure to show such excuse, he is peremptorily ordered to do the act commanded. The first of these orders is called an "Alternative Mandamus," the second Is called a "Per- emptory Mandamus." (793 and 794). If the peremptory writ he not obeyed, the defendant will be committed for contempt unless he can purge himself of such contempt by some excuse satisfactory to the court. The plaintiff may waive disobedience to the peremptory order and, in- stead of proceeding against the defendant for contempt, may have an alias peremptory writ issued — thus giving the defendant another op- portunity for obedfence. (794). Sec. 4. Quo Warranto. — The original common-law writ was a civil writ at the suit of the crown, and not a criminal prosecution. It was in the nature of a writ of right, by the king, against one who usurped franchises or liberties, to inquire by what right he claimed them. The first process was a summons. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an "Information in the Nature of a Quo Warranto," which, in its origin, was "a criminal method of prosecution, as well to punish the usurper, by a fine, for the usurpation of the franchise, as to oust him or seize it for the crown." It long ago lost its character as a criminal proceeding in everything ex- cept its form, and is now used for the mere purpose of trying the right to the franchise and of seizing it or ousting the wrongful possessor thereof; and such, in the absence of a statute, has always been its char- acter in many of the states. In some of the states, however, it has been treated as a criminal proceeding in form, and matters of pleading and jurisdiction are governed accordingly. (796-798). Under the Eng- lish practice, the burden of proof is on the defendant when proceeded against by quo warranto for the alleged usurpation of a franchise — for, contrary to the rule in other civil causes, the defendant must show af- ttimatively his title to the franchise in question. (79S). Questions as to the title and possession of oflices were determined, at common law, by the vrit of quo warranto, but that writ was supplanted by the information in the nature of a quo warranto, which has ever since been the exclu- sive remedy in such cases, in the absence of a statute, both in England and in this country. Where the right or title to an office is put in is- sue, mandamus is not the proper remedy, but an action in the nature of a -iuo T.'arranto is. (799). Whether or not this remedy lies against one who usurps an office in a private corporation, is a question on which the courts differ. (801). It lies against usurpers of corporate franchises. Such proceedings are regulated by statute in modem times. (802). In the absence of a statute, quo warranto does not lie to dissolve a munici- pal corporation. (803). Sec. 5. Injunction. — ^A writ of injunction may be described to be a judicial process whereby a party is required to do, or refrain from do- ing, a particular thing. The most common form of injunction is that which restrains the exercise of real or supposed rights, and is some- times called the Remedial writ of injunction. The other form, which commands an act to be done, is sometimes called a Mandatory injunc- tion and sometimes the Judicial writ of injunction. It is called the judicial writ because it issues after a decree and is in the nature of an execution to enforce the decree. It has been said in some American decisions that a mandatory interlocutory injunction will never be issued: but such decisions seem to lack weight. (804). There are nine In- stances in which a court of equity will grant injunctive relief in con- troversies over rights growing out of real estate: (1), (2), (3) where the legal right is admitted, or has been established in an action at law, or, though formally disputed, such right is clear upon facts undented, and the law affords no adequate means to enforce such right. (4) Where INTRODUCTION. Ixxix one attempts to appropriate the land of another under color of statutory authority (eminent domain), without complying with the legal condi- tions precedent; (5) to stay waste; (6) where the object of the bill Is to prevent an Injury which will be destructive of the inheritance or which equity deems irreparable — i. e. one for which no adequate compensation could be recovered In an action at law for damages; (7) to prevent or abate a nuisance; (8) where the right to be protected or enforced arises out of such a contract as comes within the equity docrlne of specific performance; (9) to prevent a multiplicity of suits concerning the same subject matter. (809). Under the practice In equity, Injunctions are divided into "Common" and "Special" — the common injunction to stop proceedings at law; the special Injunction to enforce other equitable re- lief. This distinction Is a mere matter of terminology (or syllables "to that effect") under the Code practice, and has been abolished by statute in England. Injunctions are further classified as Provisional (also called Preliminary or Interlocutory) and Perpetual (also called Final). The object of a preliminary Injunction is to prevent some threatened Irrepar- able mischief which should be averted until opportunity is afforded for a full and deliberate investigation of a cause pending in the court. The granting or refusal of such an Injunction during the pendency of the cause. Is a matter of discretion with the Chancellor. (811-815). A circuit court of the United States has no jurisdiction to enjoin proceed- ings in a state court. (815). Courts of equity have jurisdiction to enjoin proceedings at law In all cases in which, by fraud, accident, mis- take, or otherw-ise, "a party has obtained an advantage In a court of law which must necessarily make that court an instrument of Injustice." In such cases, the injunction may be to stay trial; or, after trial and verdict, to stay judgment; or, after judgment, to stay execution; or, after execution, to stay money in the hands qf the officer. But no in- junction will be granted to stay execution unless there has been fraud or collusion in obtaining the judgment or the verdict upon which it Is founded; or unless the defendant was unable effectually to defend him- self at law without any fault or negligence of his own; or unless the plaintiff obtained some unconscientious advantage. An injunction to stay proceedings Is not to be confounded with a writ of prohibition. The Injunction is not addressed to a court, but only to the parties to an action pending in a court — it assumes no superiority over the court in which the action Is pending, nor does It deny the jurisdiction of such court. Its object is merely to prevent an unfair use of proceedings in a court of law, whereby a party may be deprived of his just rights or sub- jected to some unjust vexation or injury, and, yet, is without any remedy unless such be afforded him by a court of equity. (816). An injunction will not issue to prevent the commission of a crime; nor to test the validity of town ordinances. "If an injunction to prevent the commis- sion of a crime could issue, the violation of the order — the crime — could be punished. In proceedings for contempt, by the judge without a jury. But the Constitution guarantees, to one charged with a crime, the right of trial by jury. To hold otherwise would be to sanction 'government by injunction.'" (817). An appeal from an order granting an Injunc- tion does not vacate the injunction; nor does an appeal from an order vacating an injunction continue the injunction in force. (818). Sec. 6. Bills of Peace and Quia Timet. — Bills of peace are of two kinds: (1) To establish a right claimed by the plaintiff which is con- troverted by numerous parties having distinct interests originating in a common source — e. g. a right of fishery claimed by one party and con- troverted by numerous riparian owners. In such a case, equity will in- terfere and bring all the claimants before the court In one suit — ^In order to avoid a multiplicity of actions at law. To thus put at rest the con- troversy and determine the rights of many claimants to separate In- terests In the same subject matter. Is pre-eminently a proceeding in the Interest of peace; (2) to protect a party from repeated vexatious litiga- tion after his rights to real property have been unsuccessfully attacked in repeated actions at law and are still threatened with further attacks Ixxx INTRODUCTION. Of the same kind. The equity of the plaintiff in such cases arose from the protracted litigation which the action of ejectment permitted. In that action, a change in the date of the alleged demise being suflScient to support a new action, the party in possession, though successful in every Instance, might be harrassed and vexed, if not ruined, by a litiga- tion constantly renewed by some land-grabbing Antaeus. Bills of peace of this second class are commonly called bills to "Remove a Cloud on Title," or to "Quiet Title," or to "Quiet the Possession," to real property. "A bill Quia Timet is generally brought to prevent future litigation by removing existing causes of controversy." (821). Any court of record has the power, whenever several actions are pending by the same plain- tiff against the same defendant for causes of action which may be joined, to order the several actions to be consolidated into one. The prosecu- tion of a multitude of actions at law, all of which depend, for their determination, upon the same facts and legal principles, is onerous and oppressive, and will be enjoined in equity. (824). The relief against vexatious litigation afforded by the courts of equity, may be obtained, under the Code practice, by a motion in the cause for an injunction, as for a consolidation of pending actions. (826). Sec. 7. Bills of Interpleader. — A bill of interpleader is for the pro- tection of a person from whom several claim, legally or equitably, the same debt, thing, or duty; but who has incurred no independent liabil- ity to any of them, and who does not himself claim any interest in the matter. That the party seeking relief has incurred no Independent lia- bility to either claimant, is a sine qua non; and so is the further prop- osition, that the claims with which the plaintiff is threatened must be such as antagonize and negative each other. But if several antagonis- tic claims be asserted to the same fund the remedy lies. (828). The material allegations of the bill are: (1) That two or more persons have each preferred a claim against the complainant; (2) that they claim the same thing; (3) that the complainant has no beneficial interest in the thing claimed; and (4) that he cannot determine, without hazard to himself, to which of the defendants the thing belongs. There should be annexed to the bill an affidavit that there is no collusion between the complainant and any of the parties. The thing claimed should be brought into court that the complainant may reap no benefit from the delay incident to filing the bill. This remedy is given in order to pro- tect a person against a double liability, or, to speak more accurately, against a double vexation on account of one liability. While the early authorities were very exacting upon the subject of privity in such cases, many of the later cases have been less rigid and some have ignored it altogether. The doctrine of privity seems to have been abrogated as to such cases, partly by statute and partly by judicial decisions; and the Code practice does not seem to recognize it. (828). Sec. 8. Certiorari. — In the old English law, the writ of certiorari was used to bring up an indictment from an inferior court into the King's Bench for trial; or to have the judgment of an inferior magistrate, not proceeding according to the course of the common law, reviewed. In neither instance did a second trial of the facts take place. In this country the writ may be used as a writ of false judgment, merely to have the matter of law reviewed: but it is also used to afford a means of retrying the facts — a use unknown to the English law. In proper cases, the writ is used as a substitute for an appeal when a party has been improperly deprived of his appeal, or has lost his appeal by ac- cident or excusable neglect. (832). The writ is in the nature of a writ of error and is resorted to in those cases in which a writ of error does not lie. When courts act in a summary way, or in a new course differ- ent from that of the common law, a certiorari, and not a writ of error, is the proper remedy. The only legitimate use of a certiorari Is to bring up, for review, the final decision of an inferior court. If parties were permitted to procure the writ at any time during the progress of a cause, it would lead to intolerable interruptions and delays. (833). The writs of recordari and certiorari are used most commonly as sub- INTRODUCTION. Ixxxi stitutes for an appeal, where the appellant has lost or been improperly deprived of his appeal without default or negligence on his part. The recordari may be also used as a writ of false judgment; and the cer- tiorari as a writ of error. When thus used, only the form and sufficiency of the proceedings of the lower court, as such proceedings appear upon the face of the record, can be passed upon by the appellate court which issues the writ. The writ of recordari is issued only to an Inferior tribunal whose proceedings are not recordedi — to a court not of record. The writ of certiorari Issues to a court of record. (835). Certiorari will issufe to a lower court, from an appellate court of general super- visory jurisdiction, in cases in which no appeal is provided for by law. (836). A certiorari always issues, as a matter of course, from an ap- pellate court upon a "suggestion of a diminution of the record; " and the court will ex mero motu order the writ where there is an apparent dimi- nution of the record in a criminal case. (838). The writ will not issue to a judge to command him to correct, change, or certify a "case on ap- peal," unless it appear by a written statement from the judge that he will make the correction, etc., which the applicant for the writ desires to have made. (838). Sec. 9. Recordari. — At common law the writ of recordari served a double purpose, (1) as a substitute for an appeal lost without default of the petitioner; (2) as a writ of false judgment where the inferior tri- bunal had acted beyond its jurisdiction, or the judgment was taken with- out service of procees. The practice is now generally regulated by statute. Sec. 10. Scire Facias — Sci. Fa. — This is a judicial writ founded on some matter of record, as a recognizance, etc. : nevertheless it is so far treated as an original action to which the defendant may plead, that it must contain upon its face a legal cause of action. (841). There were two forms and purposes of the writ at common law; (1) One used to remedy defects in, or as a continuation of, some former or pending ac- tion ; (2) another, in the nature of an original writ, used to commence some proceeding. Formerly a sci. fa. of the first class was used to ob- tain an execution on a dormant judgment; to prevent the abatement of an action; and to remedy defects arising from a change of parties, etc. Writs of the second class were used to repeal letters patent; to subject bail; to enforce an amercement against a sheriff, etc. These matters are now generally regulated by statute. (843). CHAPTER XI. ANCILLARY REMEDIES. — Introductory. All ancillary remedies are based upon an affidavit filed in the cause; and while the contents of the affidavit will vary according to the particular remedy sought, still there is one rule common to all such affidavits, to wit, that when the grounds upon which the remedy is sought consist of matters suspected or antici- pated, as distinguished from facts which actually exist, the affidavit must set forth all the facts and circumstances which constitute the basis of the plaintiff's conjecture or inference that the defendant is about to do certain things. This is required in order that the court may draw its own conclusions from the facts and circumstances dis- closed, and be guided by its own deductions, and not by those of an in- terested plaintiff. (845). Sec. 1. Arrest and Bail. A constitutional provision prohibiting im- prisonment for debt except in cases of fraud, has no application to ac- tions for pure torts. (846). In an application for an order of arrest, the plaintiff should state, in an affidavit, such facts as clearly disclose a cause of action for which the defendant may be lawfully arrested. These facts should be set forth with such fullness and legal precision as to enable the court to clearly see the particular cause of action in- tended. The court should find the facts from the plaintiff's affidavit. A party should not be arrested upon conjecture, nor upon facts which Ixxxii INTRODUCTION. leave the mind of the court in douht and uncertainty. The affidavit should state the facts positively, when this can he done; but if it is founded upon the information and belief of the affiant, the grounds of such belief must be set forth, so that the court can see and judge of their character and sufficiency. The defendant may at any time before judgment move to vacate the order of arrest, upon the ground that it was irregularly granted, or that the evidence and the facts found were insufficient to justify it. In such case the plaintiff cannot be allowed to offer additional evidence to support his motion theretofore improperly granted. But the defendant may support his motion by producing coun- ter-affidavits and other appropriate evidence to prove that the plaintiff's motion for the order of arrest was not well or sufficiently founded. In this case, the plaintiff may produce additional affidavits and other perti- nent evidence to cure defects and strengthen his case. The court will direct that the order remain undisturbed, that it be modified In some particular, or vacated, accordingly as it may be of opinion one way or the other. The order, regularly and properly granted, should not be vacated but upon convincing proof that it should be. (846). Whether or not the defendant can be arrested and imprisoned under an execu- tion issued upon a judgment founded on a tort — where no ancillary or- der of arrest has been sued out — is a matter of local statutes and prac- tice. (848). Sec. 2. Claim and Delivery. This is an ancillary remedy incident to the action under the Code practice to recover the possession of chattels — which action practically corresponds to the old actions of detinue and replevin. If the plaintiff be content to let the chattel continue in de- fendant's possession pending the action, there is no need for his suing out this ancillary remedy of claim and delivery. This action is then, in effect, the old action of detinue. It is only when the plaintiff seeks to have the property delivered to him Instanter and to have the possession pending the action, as in the old action of replevin, that he need sue out this ancillary remedy. (850). Sec. 3. Injunction. It is a mistaken notion that seems to prevail extensively, that relief by injunction may be had in almost any case, and as a matter of convenience, under the Code method of procedure. On the contrary, it is only to be granted when and where adequate re- lief cannot be had without it. It is extraordinary and provisional in its nature and purpose. Sec. 4. Attachment. The process of attachment, as it existed under the common law, differed in its nature and object from the provisional remedy now known by that name. Its original purpose was to acquire jurisdiction of the defendant by compelling him to appear in court through the seizure of his property, which he forfeited if he did not ap- pear or furnish sureties for his appearance. The practice of attaching the effects of a defendant and holding them to satisfy a judgment, which the plaintiff may recover, when, perhaps, judgment may be for the de- fendant, is unknown to the common law, and is founded on statute law. Its present purpose is not to compel appearance by the debtor, but to secure the debt or claim of the creditor. It is a proceeding in rem, and the process may Issue, in certain cases, whether the defendant has been served with a summons or not, although inability to serve through the fault of the defendant, is a ground upon which the warrant may be granted. It exists, as a provisional remedy, only when authorized by statute, and, as such, is comparatively recent in its origin. Under the Code practice the remedy is not only created by statute but has sub- stantially none of the features peculiar to the common-law remedy. This remedy is looked upon with jealousy by some courts and hence we find such expressions as the following: It amounts to the involuntary dispossession of the owner prior to any adjudication to determine the rights of the parties. It violates every principle of proprietary right held sacred by the common law. It is, to some extent, equivalent to execution in advance of trial and judgment. Owing to its statutory origin and harsh nature, laws conferring this remedy should be con- INTRODUCTION. Ixxxiii strued, in accorclanw with the general rule applicable to statutes in de- rogation of the common law, strictly in favor of those against whom it may be employed. "Foreign attachment" is a peculiar proceeding to compel the appear- ance of a debtor by seizing his property, and, in default of appearance, appropriating it to the payment of the debt. It is strictly a proceed- ing in rem. With respect to the property attached, whether it be real or personal, or a debt due the defendant, the judgment and proceedings are conclusive. If the court had jurisdiction, the judgment is conclu- sive, and cannot be called in question for mere irregularities. But ex- cept with respect to the property attached, the proceeding has no effect. No action can be brought on the judgment recovered, and in an action •on the original demand a judgment in attachment is not competent as prima facie evidence of the indebtedness. The proceeding in attach- ment had its origin in the custom of London, and has been adopted and modified by statutory provisions. One of the peculiarities of the pro- ceeding by attachment is, that the defendant may appear during the pendency of the suit and contest the plaintiff's demand, or, within the time limited after judgment, may dispute the debt for which the at- tachment issued. Both these remedies are given in the alternative. The defendant has his election to pursue either. If he appears to the suit, he makes the judgment, if any be recovered, a judgment in per- sonam. He is under no obligation to give the plaintiff that advantage. He may leave the plaintiff to prosecute his proceedings in rem, and avail himself of the right which the law gives him of recovering back the proceeds realized, if the debt be not due. (852-854). The practice in granting, vacating, and levying attachments, and with regard to serving notice on the defendant by publication or otherwise, is regulated by statute in the different states. By act of Congress (U. S. Comp. St. 1901, p. 3517) it Is provided that no attachment shall be brought against a national bank in any state court, and this has been held to be the law, not only as to state courts, but also as to United States courts. (859). In Pennoyer v. Neff it is ruled that a judgment recovered in attach- ment proceedings in which there is no personal service of process is exhausted by a sale of the property attached and the appropriation of the proceeds to the creditor's debt, and possesses no other legal force. The sale of other land of the debtor under such judgment was held to pass no title to the plaintiff. Other courts have held that a proceeding commenced by original attachment and prosecuted, on due notice by publication of the seizure of the debtor's property, to final judgment, was not a proceeding in rem, but the judgment is personal. The at- tachment was, in its nature and operated as, a distress to compel ap- pearance; and if it did not, the judgment was as absolute and conclu- sive as if rendered after personal service. The attachment under the Code is of quite a different nature, and subsidiary only towards obtain- ing the relief which is the object of the action, and seems to be intended to he more comprehensive and more fully remedial within the state than is admitted in the opinion in Pennoyer v. Neff. As to the extra-terri- torial effect of such a judgment, it can be only recognized as effectual so far as it appropriates the debtor's property to the creditor's demand, and is wholly inoperative beyond that limit. (860). Sec. 5. Receivers and Sequestration. Ne Exeat. The original and primary jurisdiction of the court of chancery was in personam merely. The writ of assistance to deliver possession, and even the sequestration of property to compel performance of a decree, are of comparatively recent origin. The jurisdiction of the court was exercised, for several centuries by the simple proceeding of an attachment against the bodies of the parties to compel obedience to its orders and decrees. A receiver is the representative of the court, and may, by its direction take into his possession every kind of property which may be taken in execution, and also that which is equitable, if of a nature to be reduced to possession. He is an indifferent person between parties, appointed by the court to receive rents, issues, or profits of land, or other thing In Ixxxiv INTRODUCTION. question in the court, pending the suit, where it does not seem reason- able to the court that either party should do it. He is an oificer of the court; his appointment is provisional. He is appointed in behalf of all parties, and not of the complainant or the defendant only. He is ap- pointed for the benefit of all parties who may establish rights in the cause. The money in his hands is in custodia legis for whoever can make out a title to it. It is the court itself which has the care of the property in dispute. The receiver is but the creature of the court; he has no powers except such as are conferred upon him by the order of his appointment and the course and practice of the court. A receiver being an officer of the court, the court has control over the parties to a suit and can order them to deliver property in controversy to its ofBcer, and if they fail or refuse to obey such order, they may be proceeded against by process of contempt. In the absence of a statute or local ruling, a receiver appointed in one jurisdiction can bring no action in any other jurisdiction. In fact, he cannot commence an action for the recovery of outstanding property without an order of the court; and when such order is made, the action must be brought in the name of the legal owner, who will be compelled to allow the use of his name upon being properly indemnified out of the estate and effects under the con- trol of the court. The practice of the court of chancery in England on this subject is well settled by many authorities, has long been the course and practice of our courts, and has not been materially changed by the Code. In New York, in matters of this kind the common law powers of receivers have been greatly enlarged by statute, and they may bring an action in their own names for the recovery of property which they have been directed by an order of the court to reduce into possession. For- eign receivers may sue in the courts of North Carolina, by comity. (861- 863). When money is alone the demand, the common law security is the person of the debtor, nor will equity go farther; but when property is in contest, chancery will, in cases where the circumstances authorize its interference, and where its aid is invoked, secure the property itself during the existence of the controversy. Thus, in cases of waste, the common law gave the writ of waste, and, to aid and secure to the plain- tiff the full benefit of the process, the writ of estrepement, to stay the further injuring of the property during the contest, was awarded. The writ of waste, both in England and in this country, from its peculiar features, has become obsolete, and has been succeeded by the more con- venient and less cumbrous "action on the case in the nature of waste." With the old writ fell that of the estrepement, and the power of the court of equity was called in to supply its place, in aid of the more modern action on the case, and in analogy to the writ of estrepement. Equity, when it interferes, will secure the property in contest during the litigation. Where there is reason to apprehend that the subject of a controversy in equity will be destroyed, removed, or otherwise dis- posed of by the defendant, pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered and delayed in ob- taining it, the court, in aid of the primary equity, will secure the fund by the writ of sequestration, or by the writs of sequestration and In- junction, until the main equity is adjudicated at the hearing of the cause. These writs are extraordinary process, and to sustain them, on a motion to dissolve the injunction and remove the sequestration, the court must be satisfied: (1) That the complainant does not sue in a mere spirit of litigation, and seek to set up an unfounded claim, but has probable cause, and may at the hearing be able to establish his primary equity; (2) that its extraordinary process is not asked for simply to vex and embarrass the defendant, but because there is reasonable ground for apprehension in regard to the security of the fund pending the litiga- tion. (865, 866). Property in the hands of a receiver is in custodia legis, and, hence, not subject to execution sale. Any person claiming to have an interest, while he cannot Interfere under the process of an- other court, may apply to the court which has jurisdiction of the fund, pro interesse suo, and his claim will be heard. (867). A motion for INTRODUCTION. IXXXV a receiver pending a suit to foreclose a mortgage, granted without due caution, might put it in the power of an irresponsible or reckless mort- gagee to ruin a mortgagor's business. Whether a receiver shall be ap- pointed in any case is left, therefore, largely to the sound judgment of the presiding judge, who will take into consideration all the circum- stances, including the nature of the property; its likelihood to be de- stroyed or spirited away during the litigation; and the probability, on the other hand, of its value being seriously impaired by its being placed in the hands of a receiver, as would be particularly the case with such property as a newspaper. The defendant's insolvency and poverty, taken alone, is not sufficient ground for placing his property in the hands of a receiver — especially when he denies owing anything on the mortgage. (868). The writ of ne exeat was a process unknown to the ancient common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. From an early period it was used as an auxiliary jurisdiction of courts of equity, and at one time it issued at the instance of the king as a prerogative writ. It is granted wherever a present equitable debt is owing, which, if due at law, would warrant an arrest, and also to enforce arrears of alimony in aid of the spiritual court, because of the inability of that court to require ball. The ne exeat, as now understood and used, is a proceeding in equity to obtain bail in a case where there is a debt due in equity, though not at law. The general rule is, that where you can get bail at law, equity will not grant the writ. In the exercise of this power, courts of equity will be very cautious, as It is a strong step, tending to abridge the liberty of the citizen. "To induce that court to issue a ne exeat, it must appear: (1) That there is a precise amount of debt positively due; (2) that it is an equitable demand, upon which the plaintiff cannot sue at law, ex- cept in account and some other cases of concurrent jurisdiction; (3) that the defendant is about quitting the country to avoid payment. The affidavit to authorize the writ must be as positive as to the equi- table debt as an affidavit of a legal debt to hold to bail. The writ of ne exeat is in the nature of equitable bail — it is used to keep the person of the defendant within the jurisdiction of the court. Sequestration, of the kind here discussed, was for the purpose of keeping the defendant's property within the control of the court in order to coerce obedience to the decree. (870). CHAPTER XII. JURISDICTION. If a court, whether of law or of equity, have no juris- diction of the subject-matter in controversy, it can render no valid judg- ment or decree upon the merits of the cause. Jurisdiction is the power to hear and determine the matter in controversy between parties to a suit — to adjudicate or exercise judicial power over them; the question is, whether on the case before a court, its action is judicial or extra- judicial — with or without the authority of law to render a, judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction. To decide what shall be adjudged or decreed between the parties, and with which party is the right of the case, is judicial action. It is a necessary presumption that a court of general jurisdiction can act upon the given case, where nothing appears to the contrary. Hence has arisen the rule that the party claiming exemption from its process, must set out the reasons by a special plea in abatement, and show that some in- ferior court of law or equity has exclusive cognizance of the case; other- wise the superior court must proceed, in virtue of its general jurisdic- tion. This rule prevails both at law and in equity. A plaintiff in law or equity is not to be driven from court to court by such pleas; if a defendant seeks to quash a writ or dismiss a bill for want of jurisdic- tion in the court, he must designate the proper court, and shall never put in a second plea to the jurisdiction of that court to which he has Remedies — g. Ixxxvi INTRODUCTION. driven the plaintiff by his plea. An objection to jurisdiction, on the ground of exemption from the process of the court in which the suit is brought, or the manner in which the defendant is brought into It, is waived by appearance and pleading to the issue; but when the objection goes to the power of the court over the parties or the subject-matter, the defendant need not, for he cannot, give the plaintiff a better writ or bill. As a United States court is one of limited and special original jurisdiction, its action must be confined to the particular cases, con- troversies, and parties over which the constitution and laws have au- thorized it to act; any proceeding without the limits prescribed is coram non judice, and a nullity. (874, 875). Letters of administration upon the estate of a person who is in fact alive have no validity or effect as against him. By the law of England and America, before the Declara- tion of Independence and for almost a century afterwards, the absolute nullity of such letters was treated as beyond dispute. No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party. Even a judgment in proceedings strictly in rem binds only those who could have made themselves par- ties to the proceedings, and who had notice, either actually or by the thing condemned being first seized into the custody of the court. A court of probate must, indeed, inquire into and be satisfied of the fact of the death of the person whose will is sought to be proved or whose estate is sought to be administered, — ^because, without that fact, the court has no jurisdiction over his estate; and not because its decision upon the question, whether he is living or dead, can in any wise bind or estop him, or deprive him, while alive, of the title or control of his property. The appointment by the probate court of an administrator of the estate of a living person, being without jurisdiction and wholly void as against him, all acts of the administrator, whether approved by that court or not, are equally void. The receipt of money by such admin- istrator is no discharge of a debt, and a conveyance of property by him passes no title. The fact that a person has been absent and not heard from for seven years, may create such a presumption of his death as, if not overcome by other proof, is such prima facie evidence of his death that the probate court may assume him to be dead and appoint an ad- ministrator of his estate, and that such administrator may sue upon a debt due to him. But proof, under proper pleadings, even in a col- lateral suit, that he was alive at the time of the appointment of the ad- ministrator, controls and overthrows the prima facie evidence of his death, and establishes that the court had no jurisdiction and the ad- ministrator no authority. The supposed decedent is not bound either by the order appointing the administrator or by the judgment in any suit brought by the administrator against a third person — ^because he was not party to and had no notice of either. (877). In many cases, where there has been an objection to the jurisdiction, because of some irregularity or defect in the service, or some merely technical defect In the process, it has been held that a general appear- ance by the defendant is a waiver of such objection. But this rule ap- plies only in cases where the court has jurisdiction of the subject-mat- ter. Consent of parties may in a certain sense give jurisdiction of the person, but it cannot create a jurisdiction over the cause and subject- matter which is not vested in the court by law. (882). Where a court has no jurisdiction of the subject-matter, the objection can be taken at any time. Indeed, as soon as this fact is discovered, the court ex mero motu will take notice of it and dismiss the action. But if it has juris- diction of the subject-matter and the. venue is wrong, the objection must be taken in apt time; and it the defendant pleads to the merits of the ac- tion, he will be taken to have waived the objection. He cannot have two chances. (883). Where there are courts of equal and concurrent jurisdiction, that court possesses the case in which jurisdiction first at- taches. (883). The following propositions seem to be settled: First. The requirement INTRODUCTION. IxXXVJi of the constitution is not that some, but that full, faith and credit shall be given by states to the judicial decrees of other states. Second. Where a personal judgment has been rendered in the courts of a state against a non-resident merely upon constructive service — and, therefore, without acquiring jurisdiction over the person of the defend- ant — such judgment may not be enforced in another state in virtue of the full faith and credit clause. Indeed, a personal judgment so rendered is, by operation of the due process clause of the 14th Amendment, void, as against the non-resident, even in the state where rendered; and, there- fore, such non-resident, by virtue of rights granted by the constitution of the United States, may successfully resist, even in the state where ren- dered, the enforcement of such a judgment. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them; and publication of process, or notice, within the state where the tribunal sits, cannot create any greater obligation upon the non-resident to ap- pear. Process sent to him out of the state and process published within it are equally unavailing in proceedings to establish his personal lia- bility. Third. The principles, however, stated in the second proposition, are controlling only as to judgments in personam, and do not relate to pro- ceedings in rem. Fourth. The general rule stated in the second proposition is, more- over, limited by the inherent power which all governments must possess over the marriage relation — its formation and dissolution — as regards their own citizens. From this exception it results that where a court of one state, conformably to the laws of such state, or the state itself through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state as to such citizen; and the validity of the judgment may . not therein be questioned j)n the ground that the action of the state in dealing with its own citizen concerning the marriage relation, was re- rugnant to the due process clause of the constitution. And as a corol- lary of the recognized power of a government thus to deal with its own citizen by a decree which would be operative within its own borders, irrespective of any extra-territorial efficacy, it follows that the right of another soveieignty exists, under principles of comity, to give to a de- cree so rendered such efficacy as to that government may seem to be jus- tified by its conceptions of duty and public policy. Fifth. Where husband and wife are domiciled in a state, there exists jurisdiction in such state, for good cause, to enter a decree of divorce which will be entitled to enforcement in another state by virtue of the full faith and credit clause. It has, moreover, been decided that where a bona flde domicil has been acquired in a state by either of the par- ties to a marriage, and a suit for divorce is brought by the domiciled party in such state, the courts of that state, if they acquire ' personal jurisdiction of the other party, have authority to enter a decree of di- vorce, entitled to be enforced in every state by the full faith and credit clause. Sixth. Where the domicil of matrimony was in a particular state, and the husband abandons his wife and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicil of matrimony, and, therefore, is not to be treated as the actual or constructive domicil of the wife; hence, the place where the wife was domiciled when so abandoned constitutes her legal domicil until a new actual domicil be by her elsewhere acquired. Seventh. So also it is settled that where the domicil of a husband is In a particular state, and that state is also the domicil of matrimony, the courts of such state having jurisdiction over the husband may, in virtue of the duty of the wife to be at the matrimonial domicil, disre- gard an unjustifiable absence thereform, and treat the wife as having her domicil in the state of the matrimonial domicil for the purpose of Ixxxviii INTRODUCTION. the dissolution of the marriage, and, as a result have power to render a judgment dissolving the marriage — which judgment will be binding upon both parties, and will be entitled to recognition in all other states by virtue of the full faith and credit clause. These propositions settle three things beyond dispute: (1) In view of the authority which government possesses over the marriage relation, no question can arise concerning the right of a state within its own borders to give effect to a decree of divorce rendered In favor of the husband within such state — he being domiciled in such state when the decree is rendered; (2) where the husband abandons his wife and flees from the state of her domicil and of the matrimonial domicil, it clearly follows from the sixth proposition, ante, that the wife's domicil remains unchanged; (3) where the wife is neither constructively within a state nor individually domiciled therein, and does not appear in the divorce cause and is only constructively served with process issued in such cause, the courts of the divorcing state cannot acquire jurisdic- tion over the wife within the fifth and seventh propositions, ante. A proceeding for divorce is not of such an exceptional character as to be excepted from the rule which limits the authority of a state to persons within is jurisdiction. While a state may enforce within its own borders a divorce rendered without personal service of process — whether such divorce be rendered in one of its own courts or in that of another state — yet such divorce is not within the full faith and credit clause, unless it be rendered in a cause in which personal service is dispensed with by the letter or spirit of the doctrines announced in the foregoing seven propositions. (885). When a judgment rendered by a court of one state becomes the cause of action in the courts of another state, and the transcript, as made in such state, duly certified as prescribed by the act of congress, is pro- duced, it imports verity and can be attacked for only one purpose. The defendant may deny that the court had jurisdiction of his person or of the subject-matter, and for this purpose may attack the recitals In the record. Jurisdiction will be presumed until the contrary is shown. If not denied, or if established after denial, defendant cannot interpose the plea of nil debet. In some of the states where the formal distinc- tion between law and equity is abrogated, the law allows equitable de- fenses to be set up in an action at law. Hence, in those states, when the suit is brought upon a domestic judgment, the defendant is al- lowed to plead any circumstances of fraud which would have justified a court of equity in interfering in his behalf. Now, when the same judgment is made the basis of an action of another state, he ought to be allowed the same latitude of defense; for if it were otherwise, the foreign court would be required to give greater faith and credit to the judgment than it is entitled to at home. This the constitution does not require. Under the Code practice, the fraud may be set up in the answer. (891). A plaintiff having a number of items of charge against the same de- fendant may unite them in one action, and where the aggregate of such claims is sufficient to bring the cause within the jurisdiction of a su- peror court, such court may assume jurisdiction although the amount of each Item be too small by itself to come within such jurisdiction. (895). In Indiana it is held that when a statute gives jurisdiction to a justice of the peace of causes in which the sum demanded does not exceed one hundred dollars, the intention is to regulate such jurisdic- tion, not by the penalty of a bond, but by the amount of damages ac- tually claimed or demanded by the plaintiff. That is, if the penalty of the trial be five hundred dollars, but the plaintiff claims only fifty dol- lars as damages for the breach of the bond, the justice has jurisdiction. The contrary is held In North Carolina. (895). When the jurisdic- tion of a justice of the peace in matters of contract depends upon the amount in controversy, exclusive of interest, the amount claimed by the plaintiff Is the sum In controversy, and determines the jurisdiction. If the amount sued for he within the jurisdiction of a justice of the INTRODUCTION. Ixxxix peace, the defendant cannot defeat the jurisdiction by showing that he owes the plaintiff more than he has sued for. Whether a creditor whose demand is created by express contract, such as a promissory note, can voluntarily abandon a part of his claim, or enter a credit upon it for the express purpose of reducing it within the jurisdiction of a given court, is a question upon which the authorities differ. It is probable that the weight of decision is with the affirmative. This matter is reg- ulated by statute in some states. (896). The entry of a credit with- out having received a corresponding payment, but merely for the pur- pose of reducing the claim so as to bring it within a magistrate's juris- diction, has been held to be a fraud upon the jurisdiction. Such mat- ters are usually regulated by statute. (898). Statutes fixing jurisdic- tion are based upon the assumption that plaintiffs will act fairly and only demand such an amount as they may reasonably expect to recover. When the contrary appears, it is the duty of the courts ex mero motu to interfere and prevent an evasion of the law. In olden times, when it was found that, by reason of the vast increase in commercial dealings, the court of Common Pleas in England — to which was assigned, by statute, all actions founded on contracts — ^was oppressed with business, the fiction of quo minus in the court of Exchequer and the contrivance of the ac etiam clause in the King's Bench were winked at and favored by the courts, in order to divide the jurisdiction in regard to contracts, and to relieve the court of Common Pleas of a part of a burden which was too heavy for it. But the condition of things here is entirely dif- ferent, and the courts are not at liberty to wink at, or favor, an attempt to evade the laws prescribing the jurisdiction of the several courts. (8D8). Sometimes a superior court has both appellate and concurrent jurisdiction of matters cognizable by an inferior court. Where it is concurrent, and a case is carried by appeal to the superior court, and the appellant goes to trial without objection, that court will have cognizance of the matter by virtue of its original jurisdiction of the subject-matter of the action and of the consent of the parties thus mani- fested, however irregular the proceedings may have been in the inferior court. But when the inferior court takes cognizance of an action of which it has no jurisdiction, and the case is carried by appeal to the superior court, the superior court acquires no jurisdiction, because in such cases its jurisdiction is altogether derivative, and depends upon that of the inferior court. (899). In the early days of chancery jurisdiction in England, the chancellors were accustomed to deliver their judgments without regard to princi- ples or precedents and in that way the process of building up a system of equity went on — the chancellor disregarding absolutely many estab- lished principles of the common law. In their work the chancellors were guided not only by what they regard as the eternal principles of absolute right, but also by their individual consciences. After a time this theory of personal conscience was abandoned; and the conscience^ which is an element of the equitable jurisdiction, came to be regarded, and has so continued to the present day, as a metaphorical term, desig- nating the common standard of civil right and expediency combined — a judicial and not a personal conscience. Whenever the principles of the law by which the ordinary courts are guided, tolerate a right, but af- ford no remedy; or where the law is silent, and interference is neces- sary to prevent a wrong; or where the ordinary courts are incompetent to a complete remedy, a court of eq;.lty will afford relief. So also in cases where it is essential to a fair trial in the courts of law, a court of equity will lend assistant aid, by compelling discovery of matters necessary for that end. In this respect she acts as a handmaid of the law. But in no instance will a court of equity interpose where the party applying has a fair and complete remedy at law. Whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial tiy XC INTRODUCTION. jury. Relief will not be granted in chancery when, at law, a complete remedy is afforded. Equity will not entertain a bill when personal property is the subject-matter, unless in some peculiar cases; nor will it interpose and enjoin a sale of personal property, taken in execution, either on the ground that It is not the property of the defendant in the execution, but belongs to a third person, or that it belongs to the com- plainant, unless it be shown that if the property were sold the com- plainant would be without remedy at law. The remedy at law must not only be incomplete, but the damages not an adequate compensation, to authorize a court of equity to interpose. Equity interferes in no case where the plaintiff claims as encumbrancer merely; and, where he claims as owner, only in those eases where, from the peculiar nature of the property and circumstances of the case, the remedy at law is in- complete. Where, pending a litigation, the property in dispute is in danger of being lost, and the powers of the court in which the con- troversy depends are insufficient for the purpose, equity will interpose to preserve it. Equity exercises a jurisdiction to put an end to the oppression of repeated litigations, after satisfactory determinations of the question, upon the principle interest reipublicae ut sit finis litium. In cases of personal property, the interposition of a court of equity is rare, and only occurs when the legal remedy is Incomplete, and damages are not an adequate compensation. The cases of the ancient silver altar piece, of the horn by which an estate was held, of the silver tobacco box belonging to a club, and some others, and of slaves, are examples of such interference afforded by the books, and show that in those cases the remedy at law was incomplete. Those cases rest upon their own peculiar grounds, and do not affect the rule. Bills of peace are allowed in equity where a person has a right which may be controverted by various persons, at different times and by different actions. The court will thereupon prevent a multiplicity of suits by directing an issue to determine the right, and will ultimately grant an injunction. Another occasion where a bill of this kind is resorted to, is where there have been repeated attempts to litigate the same question by ejectment and repeated and satisfactory trials. In such cases the court, upon a bill preferred by all the parties interested or by some of them in the names of themselves and the rest, will grant a perpetual injunction to re- strain further litigation. In such suits the plaintiff ought to establish his right by a determination of a court of law in his favor, before filing his bill in equity. (900, 901). Under the Code practice legal and equitable relief must be admin- istered in the same court, and may be in the same action, and in some cases in the same cause of action. The principles, doctrines and rules of law are distinct from those of equity, but they may be administered together by the same court, when it is appropriate and necessary to do so. Under that system issues of fact as distinguished from questions of fact, arising in equitable actions, as well as like issues arising in ac- tions at law, are to be tried by a jury. The law contemplates that. a jury shall find such issues, as nearly as may be, as a chancellor would do in passing upon like issues. The court should be careful to instruct the jury in such cases, as to the nature of the Issue, and the application of the evidence produced before them. The peculiar nature of such Is- sues renders it necessary that this should be done. In the trial by jury of issues arising in equitable matters, the principles, doctrines and rules of equity should be observed and applied, as nearly as may be, in the ascertainment of the facts. Otherwise, it would be difficult to admin- ister equity at all in many cases. In the judicial system of the United States government the courts of common law and of equity are still as distinct as they were in the time of Coke and Bacon, though the same judge has jurisdiction in each. The Act of Congress requiring the Fed- eral courts to conform to the practice of the state In which they are held, does not apply to the courts of equity of the United States. (905). A court that Is required to keep a record of Its proceedings and which may fine and imprison. Is a court of record. Whether or not the court INTRODUCTIOlSr. XCl of a justice of the peace is a court of record, is a question on which there is a difference of opinion. It is practically a local question de- pending upon the constitution and statutes of each state. (908). There are well known and well settled rules of distinction between local and transitory actions. Local actions are such as require the venue to be laid in the jurisdiction In which the cause of action arose. These embrace all actions in which the subject or thing sought to be recovered is in its nature local; such as actions of waste, brought to recover the place wasted, and actions of ejectment. Some other actions which do not seek the direct rcovery of lands or tenements, are also local, because they arise out of a local subject or the violation of some local right or interest. Of this class are waste for damages only; tres- pass quare clausum f regit; trespass on the case for injuries to things real, as nuisances to houSes or lands, disturbance of right of way; and the obstruction, or diversion of ancient watercourses. The action of replevin is local, although it is for damages only and does not rise out of any local subject, because of the necessity of giving a local descrip- tion to the thing taken. Transitory actions are such personal actions as seek only the recov- ery of money or personal chattels, whether they sound in tort or con- tract. They are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality. In such actions the venue may be laid in the jurisdiction wherein the cause of action arose, or where the plaintiif or defendant resides at the time of instituting the action. The amount of the recovery is governed by the lex loci, and not by the lex fori. (909). CHAPTER XIII. PROCESS. — Sec. 1. Introductory. From the opinions of two eminent judges the following summary of the English law is taken. The opin- ions were written in 1833 and 1835. "In England, when a person is about to commence a suit, the usual course of proceeding is, in the first place, to execute a warrant to an attorney of the court to have the writ issued, and the pleadings in the cause made up. The attorney then gives instructions for the original; these instructions are contained in a paper called the praecipe, in which he sets forth the cause of action. Formerly, the practice was to take the warrant and the praecipe to the chancery, where the original writ was caused to be made out by the Master of the Rolls; which original recited the action as stated in the praecipe. The original is a mandatory letter in parchment from the king, tested in his name, and sealed with the great seal. It is directed to the sheriff or other returning officer of the county where the plaintiff intends to lay the venue, and is made returnable to the court either of the King's Bench or the Common Pleas, at Westminster. If the sheriff return on the original non est inventus, the original is then left on file in the court, and a judicial writ or process issues, called a special capias ad respondendum, which is grounded upon the original. If the sheriff return on the capias, non est inventus, the plaintiff may then issue an alias, and a pluries, and so on to outlawry, to compel an appearance by the defendant. When the defendant appears in court in consequence of the service of the original or of an arrest on any process which issues upon it, the plaintiff then files his declaration, and serves a copy on the defendant, who defends either by demurrer or plea. If he pleads to the action, then the whole of the pleadings to the making up of the is- sue are completed in the superior court of Westminster. A nisi prius record is then made out and transmitted to the court of nisi prius, or the assizes of the county where the venue is laid, that the issues may be there tried by a jury. When a trial takes place, and a verdict is ren- dered, it is entered on the nisi prius roll, or some paper attached to it which is called the postea, and delivered to the party in whose favor the verdict is rendered, who returns it into the superior court, at West- XCll INTRODUCTION. minster, where the record belongs; and on notice being given to the adverse party, a motion is then made for judgment; which, if no cause is shown to the contrary, is rendered by the court, upon which issues the execution. In modern times the practice of commencing suit by original pur- chase out of chancery has been tacitly waived by the profession. The practice is now, for the attorney to leave the praecipe and a memoran- dum of his warrant at the Filazer's office, and the Pilazer thereupon is- sues a capias ad respondendum in the first instance, keeping the praecipe as instructions for the original, if such original should afterwards be- come necessary by a writ of error being brought after a judgment by default, on demurrer, or on plea of nul tiel record: for the want of an original is aided after verdict, by stat. 18 Eliz. c. 14. If a writ of error should be brought for the want of an original, in any of those cases where the defect is not cured by the statute of Elizabeth, the plaintiff may, by a petition to the Master of the Rolls, obtain an original and move the court, where the record is, to amend by adding the original, which is always granted; so that the record is complete, when, in obedi- ence to the writ of certiorari, it is transmitted into the court of errors. The plaintiff in error will then have nothing in the record upon which he can assign errors, and will fail in his efforts to reverse the judg- ment. By the rules of the common law great nicety and exactness were required in the proceedings and pleadings in a suit; small errors and inaccuracies were always sure to be fatal to the party making them; as for instance, in bailable actions, the declaration should always corre- spond with the writ in the names of the parties, and in the cause of ac- tion and if there was a variance in these, or in the sum demanded, be- tween the writ and the declaration, it would be fatal. The legislature has from time to time endeavored to remedy what it considered an evil, and has passed several statutes of jeofails and for the amendment of the law, to prevent justice being strangled in a net of forms and tech- nicalities. The legislature, further to aid the administration of justice, passed the statute 5 Geo. I, c. 13 (718) which was a very liberal statute of jeofails." "The common-law doctrine respecting process is, that mere errors in writs are cured by the appearance of the defendant. But there is a distinction between errors that only render the process voidable, and defects that render it void. Simple appearance does not cure the latter. Process in England and writs answering to those called process in England, form no part of the record; errors in them cannot be assigned for error; aence the only remedy is to move to set aside the proceedings; and that should be done before appearance, unless the writ is wholly void. In the latter case, a mere appearance will not cure the defect. The appearance, however, here spoken of, does not simply mean the coming of the defendant into the court-house; it means an appearance to the action, such as perfecting bail, or taking some step in the action towards the defense. At common law, the writ had to be tested in the name of the president judge, and then be sealed with the seal of the court, and officially signed by the clerk. The clerk was the keeper of the seal of the court at common law; and when he sealed process, he signed it officially to show that it was sealed at the proper mint of justice." (911, 915). Sec. 2. Subpoena in Equity. Naming persons as defendants in the title of a bill in equity does not make them parties, for the title is no part of the bill, whether it precede the statement of the bill, or be writ- ten on the back of it. The stating part of the bill ought to contain the ease of the plaintiff, showing his rights, and the injury done to him and by whom it was done; and, even then, the persons thus mentioned in the bill, as the authors of the wrong complained of, are not thereby made defendants, but only those persons who are named in the prayer for process and against whom process of subpoena is prayed, as the means of compelling their appearance. Prayer tor process against "the defendants," without naming them, will not do. Sec. 3. Mesne Process. By the term mesne process, is generally un- INTRODUCTION. XCllI derstood any writ issued between the original writ and the execution. By original process, the first writ at the common law, Is not meant the first process, under modern statutes. Such original writ is not used here. All our writs preceding the execution are mesne process. By mesne process is meant the writ or proceeding in an action to summon or bring the defendant into court. (920). Sec. 4. Abeest. "By the common law, no man could be arrested in actions upon contract. By a variety of statutes, the law in England was entirely changed, and in process of time every man in such actions be- came liable to imprisonment without redress. Perhaps the common law was too lenient for a commercial people; but the statute law certainly became shamefully oppressive. These evils, however, have been long since remedied. By the statutes of Henry VI, of Eliz., and more es- pecially of Geo. I, the personal liberty of the debtor and the right of the creditor have been carefully attended to." Imprisonment for debt hav- ing been abolished both in England and in this country, arrest is al- lowed only in criminal prosecutions and in civil actions founded upon pure torts. See ch. 11, § 1, ante. (920). Sec. 5. When is a Writ Issued? It has been said that, "as the teste of the writ on the one hand is not the commencement of the suit, for the benefit of the plaintiff; so on the other, the service of it, or its delivery to the sheriff, or any such thing, is no requisite to the commencement of the suit, for the benefit of the defendant: but only getting the writ — im- petratio brevis. There are many cases to that effect. The form of pleading establishes this. The constant form is, 'that the defendant did not assume within, etc., ante impetrationem brevis.' Why? Because obtaining the writ, sealed and complete In form, is in fact and law the commencing suit." But is also said that "a delivery of the writ to the sheriff for service, or something equivalent to such delivery, is neces- sary, in order that the action be deemed to have been commenced." (922, 923). And again it has been said that a summons is issued when it goes out of the hands of the clerk to be delivered to the sheriff for service. If the clerk delivers it to the sheriff to be served, it is then issued; or if the clerk delivers it to the plaintiff, or some one else, to be delivered by him to the sheriff, this is an issue of the summons; or, as is often the case, the summons is filled out by the plaintiff's attorney and put into the hands of the sheriff. This is done by the Implied con- sent of the clerk, and constitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing. Nor would the fact that a summons had been filled up by the clerk, but held by him for a prosecution bond. (925). Sec 6. Summons Under the Code Practice. By the Code practice has been adopted, substantially, the practice of the courts of equity and not that of the courts of common law. In equity the bill precedes the sub- poena which issues to bring the defendants into court. It is used to designate and bring the parties into court, and for that purpose only. It neither specifies, as the old common law writ frequently did, in what right the plaintiff claims relief, nor the right in which the defendant is sought to be charged. These matters are set forth in the bill only, and the subpoena points to the bill as containing the causes of suit which are to be answered. As it is clearly not the office of the subpoena to specify the plaintiff's claim or the defendant's liability, there can be no such thing as a variance on that account. The only difference between the practice under the Code and that of a court of equity is, that by the Code the summons does not follow, but precedes the complaint. In both courts its only operation and office is to give notice of an action begun, the parties to it, and where the complaint will be filed. The parties, plaintiff and defendant, must be named in the summons — a sum- mons for "the heirs of A" will not do. (926). Service is the judicial delivery or communication of papers — execution of process; the opera- tion of bringing the contents or effect of a document to the knowledge of the persons concerned. The manner of service is regulated by stat- ute. (930). XCIV INTRODUCTION. Wh«n an attorney enters an appearance for a party without qualifica- tion, the only reasonahle inference is, that the appearance is a general appearance — that is, for all purposes. Such an appearance curves all antecedent irregularity in the process, and places the defendant upon the same ground as if he had been personally served with process. (932). The test for determining the character of an appearance is the relief asked — the law looking to its substance, rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. The question al- ways is what a party has done, and not what he intended to do. If the relief prayed affects the merits, or the motion involves the merits — and a motion to vacate a judgment is such a motion — then the appearance is, in law, a general one. The court will not hear a party upon a special appearance except for the purpose of moving to dismiss an action or to vacate a judgment for want of jurisdiction, and the authorities seem to hold that such a motion cannot be coupled with another based upon grounds which relate to the merits. An appearance for any other pur- pose than to question the jurisdiction of the court is, general. A special appearance may be entered for the purpose of taking advantage of any defect in the notice or summons, or to question the jurisdiction of the court over the person in any other manner; but filing a demurrer or motion which pertains to the merits of the complaint or petition, con- stitutes a full appearance, and is hence a submission to the jurisdiction of the court. If one duly appears to the merits, no statement that he does not, will avail him; and, if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not. (933). If the defendant enter a special appearance and move to dismiss and his motion be overruled, he should except and proceed with his defense. He does not thereby' waive his rights under his motion; for, if his mo- tion be impraperly overruled in the lower court, it will be allowed on appeal and the whole case will be dismissed notwithstanding the fact that it has been tried on the merits; but if the defendant fail to except to a ruling refusing his motion to dismiss, and proceed with his defense, his appearance becomes a general appearance for all purposes. No appeal lies from the refusal to dismiss, until final judgment in the ac- tion; for the judgment overruling the motion to dismiss is merely inter- locutory and is not such a judgment as can be appealed from at once. If the summons be void, the defendant may wholly ignore it, or he may enter a special appearance and move to dismiss, just as he prefers. When there is a dispute about the fact as to whether a defendant en- tered a general or a special appearance, the findings of the lower court are final and not reviewable. There is no appearance unless of record, for whether he appeared or not ought to be tried by the record. (935). Where a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him is not simply voidable, but void; and it may be so treated whenever and wherever offered, with- out any direct proceedings to vacate it. It would be otherwise if the record showed service of process or appearance, when in fact there had been none. In such case the judgment would be apparently regular, and would be conclusive until vacated by a direct proceeding for that purpose. If the record shows one to be plaintiff, when in fact he was not, then it stands as where the record shows one to be defendant, when he was not. In both cases the record is conclusive until corrected by a direct proceeding for that purpose. (936). Substituted service by pub- lication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure, or some equivalent act. Such' service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners; or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. An INTRODUCTION. XCV act allowing personal service of process, issued from one state, upon a person in another state does not and cannot extend the jurisdiction. It is a convenient, and probably a more sure, way of bringing home to the non-resident the notice which is usually made by publication. But the service of process in another state is valid only in those cases in which publication of the process would be valid. Not only has the process is- suing from one state no extra-territorial effect when served in another state (except as notice of a proceeding in rem, or quasi in rem, which could be served by publication of the notice), but even in the federal courts, whose jurisdiction extends throughout the Union, a personal judgment can be had against a defendant only when sued in the district wherein he resides. A personal judgment against a non-resident can only be obtained in a state court when he can be found and served with process while in the state, or, if a corporation, by service on its agent there. (936). Jurisdiction is acquired in one of two modes — first, as against the person of the defendant, by personal service of process; or, secondly, by a proceeding against the property of the defendant within the jurisdic- tion of the court. In the latter case, the defendant is not bound by the judgment beyond the property in question. It is immaterial whether the proceeding against the property be by an attachment or by bill in chancery, but it must be substantially a proceeding in rem. A bill for the specific performance of a contract to convey real estate is not strictly a proceeding in rem in ordinary cases; but where such a procedure is authorized by statute on publication, without personal service, of proc- ess, it is substantially of that character. Mortgage liens, mechanics' liens, materialmen's liens, and other liens are foreclosed against non- resident defendants upon service by publication. Lands of non-resident defendants are attached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against non-resi- dents to the extent of any interest in property they may have in a state. Jurisdiction to hear and determine such cases may be obtained wholly and entirely by publication. All the states, by proper statutes, author- ize actions against non-residents and service of summons on them by publication or in some other form no better. In the nature of things, such must be done in every jurisdiction in order that full and complete justice may be done where some of the parties are non-residents. There are three modes for the due service of process — (a) by actual service, or, in lieu thereof, acceptance or waiver by appearance; (b) by publica- tion, in cases where it is authorized by law, in proceedings in rem. In which case the court already has jurisdiction of the res — as to enforce some lien on, or a partition of, property in its control; (c) by publication of the summons, in cases authorized by law, in proceedings quasi in rem, in which cases the court acquires jurisdiction by attaching property of a non-resident, an absconding debtor, etc. A judgment obtained under process served by the two last-named methods has no personal efficiency, but acts only on the property. (939). The prerequisites to the valid service of process — whether by publication or other method — are regu- lated by statute. (942). CHAPTER XIV. PARTIES. When a firm is a party, the name of each of the members must be set out in the summons and complaint, for there is no principle more certainly and satisfactorily settled than that, in all actions, the writ and declaration must both set forth, accurately, the Christian and surname of each plaintiff and each defendant, unless the party is a cor- poration and is authorized to sue and be sued in such corporate name: but the addition of the firm name to the individual names composing the firm is not necessary. If added, it can do no harni and will not sub- ject the plaintiffs to any additional proof. (945-946). A statute au- thorizing a proceeding against non-resident heirs, does not authorize it against them eo nomine, but leaves to the rules of the common law the mpde of enforcing their liability, subject to the particular provisions of XCVl INTRODUCTION. the statute. There is no proceeding at common law against unknown heirs. At common law or in equity, if heirs are required to he made defendants to a suit, it is the duty of the plaintiff to render them such by their proper names. (946). If only the surname of a defendant be set forth in the writ and pleadings, and the defendant appear, he can- not object to such defect after verdict and judgment. (947). Some of the doctrines of the common law in relation to the joinder of parties seem to be somewhat arbitrary. In actions founded on contract, if any of those living, to whom the promise or obligation was made, be omitted as plaintiffs; or if any to whom it was not made be joined, and that fact appear in the declaration, it is fatal on demurrer, in arrest of judg- ment, or upon a writ of error. If the defect is not shown by the plead- ings, it is ground of nonsuit under the general issue. In actions ex con- tractu, if a part only of several joint contractors be sued, and the de- fendant wish to avail himself of the omission of the others, he must do it by a plea in abatement. If he omit to do so, he cannot afterwards urge the objection in any form, though the declaration set out a joint contract. The plea in abatement for the nonjoinder of a joint contractor, must show not only that the omission has been made, but that the omitted contractor is living. (947). In a court of equity, a defect of parties is not fatal. The cause will be continued in order that all proper parties may be made. (949). At common law, in actions ex delicto, for pure torts, and not for the breach of a contract, if a party who ought to join be omitted, the objection must be taken by a plea in abatement, or by way of apportionment of damages on the trial. The defendant cannot, as in actions ex contractu, give in evidence the nonjoinder as a ground of nonsuit on the plea of the general issue. Under the Code practice, a defect of parties — a failure to join those who should be joined — must be taken advantage of by demurrer if it appear on the face of the corpplaint, and by answer if it does not so appear; but the mis- joinder of unnecessary parties is a mere matter of surplusage. (949). All actions by and against a corporation should be in its corporate name. (950). At common law, an infant could neither sue nor defend, except by guardian. By the statutes of Westm. 1, 13 Edw. 1, and Westm. 2, 13 Edw. 1, he is authorized to sue by prochein amy. In all cases, how- ever, it is error if an infant, though sued with others, does not defend by guardian. In either character, as plaintiff or defendant, prior to the statutes of Westminster, and subsequent thereto when defending, the guardian is by special appointment of the court. A prochein amy sues by the permission of the court, and the fact of such permission be- ing given, should appear in the declaration, or it is error. It is the duty of a court, if informed that a suit by prochein amy is not for the interest of the infant, to arrest the proceeding. This power, possessed by the court, is connected with its general superintending control over infcints. The right to sue by prochein amy being dependent upon minority and the admission of the prochein amy by the court, these facts should ap- pear in the declaration, or it is error. (951). Process should be served upon infant defendants in the same manner as upon adults; and to enable them to plead, answer, or demur, a guardian is necessary. It was regular, according to the English practice, to appoint a guardian ad litem before service of process upon the infant: but, according to the practice in some jurisdictions, the process must be first served. In all jurisdictions the record must show both service upon the infant and the appointment of a guardian ad litem. Some courts hold that no decree or judgment should be made against infants upon mere admissions in the pleadings. There must be proof in the same manner as if the bill had been denied. (952). It is a serious mistake to suppose that a next friend or a guardian ad litem should be appointed upon simple sug- gestion. It should never be done except upon proper application in writing, and due consideration by the court. The court should know ■who is appointed, and that such person is capable and trustworthy. The method of appointing guardians ad litem, and their duties, are usually prescribed by statute or by rule of court. Persons having any interest, real or nominal, antagonistic to that of the infant, must not be selected INTRODUCTION. XCVU to prosecute or defend on behalf of such infant. A plaintiff, though he be but a mere nominal party with no real interest in the controversy, must not act as guardian ad litem for an infant defendant. The plain- tiff's attorney must not advise or draw pleadings for the guardian ad litem of an infant defendant. The court in which the action or pro- ceeding is pending appoints a next friend or guardian ad litem. A justice of the peace may appoint a next friend to prosecute an action on behalf of the infant in such justice's court. (953). It is said that a judgment against an infant appearing by attorney, though erroneous, is of full force and effect until it be reversed; and that objection thereto can be taken advantage of only by a writ of error. "Where writs of er- ror are abolished and appeals substituted, the objection can be taken advantage of only by appeal. (957). The manner of serving process on infants is regulated by statute or rule of court. An infant cannot lawfully accept service of process; but if he does accept service and a guardian ad litem is thereafter appointed who properly represents him, such defect in the service of the process is cured. (959). It has been held that an infant in ventre sa mere cannot be made a party to an action or proceeding, and, hence, cannot be estopped by a judgment in partition proceedings. So august a tribu- nal as the Supreme Court of the United States has held to the contrary. On this subject it has been said: "The old writ of de ventre inspiclendo was devised by the courts for the purpose of examining the widow, and was granted in a case where a widow, whose husband had lands In fee, marries again soon after his death and declares herself pregnant by her first husband, and under that pretext withholds the land from the next heir. Such writ commanded the sheriff or sergeant to summon a jury of twelve men and as many women, by whom the female is to be examined 'tractari per ubera et ventrem.' Of course, no such unseemly proceeding would be tolerated in this age, but the general assembly could easily protect the unborn child as well as the innocent purchaser by prohibiting the sale of land for partition until twelve months after the intestate's death." (960). The general rule of law is very clear, that the wife cannot sue alone, but must join with her husband. The rule was relaxed, however, in cases in which the reasons upon which it was formed ceased to exist. Thus, where the husband was exiled, his wife was permitted to sue in her own name. And the same reason applying where the husband had abjured the realm, the wife, in that case, was allowed to sue, as a widow, for her dower. The wife of an alien enemy has also been held liable to suits, as the husband was not amenable to the process of the court. The banishment of the husband, even for a limited time, operates as a removal of the disabilities of the coverture, so far as to enable the wife to sue and be sued as a feme sole, although the time of banishment he expired when the action is brought. The following rhetorical flourish may not be amiss in this connection: "Miserable, indeed, would be the situation of those unfortunate women whose husbands have renounced their society and country, if the disabilities of coverture should be ap- plied to them during the continuance of such desertion. If that were the case, they could obtain no credit on account of their husbands, for no process could reach him; and they could not recover for a trespass upon their persons or their property, or for the labor of their hands. They would be left the wretched depedents upon charity, or driven to the commission of crimes, to obtain a precarious support." (962). The marriage of a feme sole defendant pendente lite, does not prevent the progress of the action against her alone. (965). A feme covert having a separate estate may, in a court of equity, be sued as a feme sole, and be proceeded against without her husband; for in respect of her sepa- rate estate she Is looked upon as a feme sole. In that court baron and feme are considered as two distinct persons and, therefore, a wife, by her next friend, may sue her own husband. When the husband is thus sued by his wife, the invariable practice is, in the absence of a statute, to require her to sue by a next friend. The object of this rule is to XCVUl INTRODUCTION. secure the costs of the action and to have a responsible person who will be liable if the process of the court should be abused, and also that a proper and fit adviser may interpose to prevent domestic feuds, and at the same time protect the feme from the frauds and power of the hus- band. (965). Under the Code practice, it now seems to be generally settled, after great confusion in the decisions growing out of the con- flicting statutes of the several states, that a married woman is invested with the legal title to her property, and may maintain in her own name any appropriate action to preserve and secure it to her own use. (966, 967). It is said that idiots and lunatics may sue at law by next friend, to be appointed by the court; but in equity, must sue by the committee or guardian of their estates duly appointed. When the idiocy or lunacy is not merely partial, and in all cases when it has been found on an inquisition, a court of equity will not allow a suit to be brought by an idiot or lunatic in his own name, or that of a next friend — whether nominated by himself or appointed by the court. His guardian or com- mittee must join in the suit. When a person is only partially incap- able, as one merely deaf and dumb, the court will appoint a next friend to be Joined with him in the suit, and to conduct it for him. The authorities all agree that idiots and lunatics must sue in equity by their committees or guardians. In some states the persons to whom the estates of idiots and lunatics are committed upon inquisition found, are styled their guardians; in other states, and in England, they are called their committees. It is further said that no case or authority can be found in which it is held that they may sue by a next friend — either a volunteer or one appointed by the court. But it is also said that, where there has been no inquisition, the lunatic may sue by next friend. The jurisdiction is expressly recognized and upheld by Eng- lish chancery courts. When a person is in fact, Insane, but has not been so adjudged by a competent tribunal, or placed in charge of a com- mittee or guardian, the courts, whether of law or equity, have jurisdic- tion to entertain suits brought by one as the next friend of the insane person. Actions at law, in behalf of lunatics, can be brought in no other name than theirs; they must not be brought in the name of the committee. They appear by guardian or attorney, according as they are within age or not. But, in equity, this incapacity to sue or defend is more considerable. In that court, after an Inquisition has taken place and a committee has been appointed, the joinder of the name of the lunatic, though usual, is merely a formality. In England, the prac- tice is to bring the bill in the name of the committee. Either way will be good. This matter of the appearance of parties non compos mentis — whether as plaintiffs or defendants — as well as all other matters per- taining to actions and proceedings by and against such persons, is now generally regulated by statute. (969, 971). The general rule as to parties in chancery is, that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows: (1) Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court — in which event the case is subject to a special rule; (2) where a person is interested in the con- troversy but will not be directly affected by a decree made in his ab- sence, he is not an indispensable party; but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached; (3) where he is not interested in the controversy be- tween the immediate parties litigant but has an interest in the subject- matter which may be conveniently settled in the suit — and thereby pre- vent further litigation — he may be made a party or not, at the option of the complainant. When the parties interested are so very numerous that it would be difficult and expensive to bring them all before the court and have all the different interests fairly tried, the court will not require a strict adherence to the rule. (974, 976). While a suit is pending, the plaintiff is considered in court, and INTRODUCTION. XCIX ready to support his right; but when the judgment is obtained, judicial proceedings are at an end, and the plaintiff is considered to be in court no longer. A cause is pending for purposes of motions until the judg- ment is fully performed — satisfied: but after final judgment the opposite party must be given due notice of an intended motion. (978). Where a contract is joint and several, though the plaintiff may go against one or all of the contractors, yet he ought not to sue an inter- mediate number. When he sues more than one, he depends upon the Joint contract, and then all the joint contractors living should be par- ties; if they be not made parties it is good ground for a plea in abate- mient. The plaintiff will not be permitted to enter a nolle prosec(ui as to any of the defendants in an action on contract, except where they sever in pleading and one pleads something which goes to his personal discharge. But the law is very different in actions founded on tort. In such actions, the persons guilty are separately liable to the party in- jured, and he has a right to sue one or all, or any number of them. If the plaintiff commence suit against several, he may, at any time before judgment, enter a nolle prosequi as to any of them. Even after a joint plea in an action of trespass, and after a verdict that the defendants are jointly guilty, the plaintiff may enter a nolle prosequi as to some and take judgment against the others. (978). The annotations to the Century Digest, Decennial Digest and American Digest, Key Number Series, were prepared by the Edi- torial Staff of the West Publishing Company. These annotations will be found throughout the volume in connection with the cases cited. They give references to the title and section number under which the several legal propositions are placed in the Century Di- gest, Decennial Digest and its continuations, the Key Number Series. As a uniform system of classification and section number- ing is now followed throughout the National Reporter System, these Key Number references make it practicable for the reader to find other decisions on the same point, not only in the Century and Decennial Digest, but in the current issues of the American Digest pnd in the bound volumes and advance sheet indexes of the various Reporters issued by the West Publishing Company. REMEDIES. CHAPTER I. REMEDIES WITHOUT JUDICIAL PROCEEDINGS. Sec. 1. — Remedies by Operation of Law. (a) Remitter. "Remitter is where he who hath the true property or jus proprietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold east upon him by some subsequent, and of course defective title; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title. The right of entry, which he hath gained by a bad title, shall be ipso facto annexed to his own inherent good title: and his de- feasible estate shall be utterly defeated and annulled by the instantaneous act of law, without his participation or consent. As if A disseizes B, that is, turns him out of possession, and dies, leaving a son C ; hereby the estate descends to C the son of A, and B is barred from entering thereon till he proves his right in an action; now if afterwards C, the heir of the disseizor, makes a lease for life to D, with remainder to B, the disseizee, for life, and D dies ; hereby the remainder accrues to B, the dis- seizee : who thus gaining a new freehold by virtue of the remain- der, which is a bad title, is by act of law remitted [to, and is] in of, his former and surer estate. For he hath thereby gained a new right of possession, to which the law immediately an- nexes his ancient right of property." 3 Blk. 19. "The principle of remitter . . . applies where one, hav- ing a wrongful possession, has the title thrown on him by act of law — as by descent; he is then remitted to his 'more an- cient and better title,' but not where he acquires the title by his own act. Coke Lit. Here the lessors of the plaintiff ac- Remedies — 1. 2 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. quired both the possession and the 'more ancient title' by their own acts. It follows that they cannot sustain it in this count." Williams v. Council, 49 N. C. at p. 216. PATE V. HAZELL, 107 N. C. 189, 11 S. E. 1089. 1890. Restoration of Suspended Title to a Chattel. [This was a civil action to recover possession of a sewing-machine.] Shepherd, J. The defendant, the legal owner of the sewing machine, leased it to Annie Smith (now Mrs. Atkinson), who, with her husband, pledged it to the plaintiff. The plaintiff held it in his possession about four years, when it was discov- ered, and taken by the defendant. The plaintiff claims title by reason of his four years' possession. It is argued that the possession of a chattel confers title when the possession has been of sufficient duration to bar an action for its recovery, and, for this position, the ease of Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, is cited. Whatever may have been held by that court, we are of the opinion that no such principle has ever been recognized as a rule of the common law in North Carolina. Such was the statute law before the adoption of the present Code (see chapter 65 § 20, Rev. Code), but this was repealed, leaving no fixed period when such possession should raise a conclusive presumption \)t title. There is no doubt that the possession of a chattel is prima facie evidence of ownership, and this possession, if adverse and long continued, may ripen into a good title; but we cannot hold, in the absence of legislation, that four years' possession, especially under the circumstances of this case, can have the effect of defeating the true owner, who is in the actual possession of his property. Affirmed See "Adverse Possession," Century Dig. §§ 610-623; Decennial and Am. Dig. Key No. Series, § 106. (b) Retainer, Lion, etc. EVANS V. NORRIS'S ADMR., 2 N. C. 411, 413. 1796. Retainer. [Case. General issue, payment and plene administravit pleaded. The defendant proved that his intestate was indebted to him; that the debt was due at the intestate's death and before this action was begun; and that he had retained the amount so due to him out of the assets which came to his hands as administrator. Plaintiff's action was to recover on a note made by the intestate. The defendant's claim, which he had retained, was based upon an oral contract.] Per Curiam. . An executor or adminstrator can only retain to satisfy his own demand, when it is of equal dignity with that of the creditors to whose disadvantage, it is retained Sec. 1 &.] WITHOUT JUDICIAL PROCEEDINGS. 3 . . . as the executor cannot sue himself, he is allowed to pay himself by retainer. The law in his favor presumes, that had he not been executor, he would have used equal diligence with any other creditor to procure payment, and places him, with re- spect to paying himself, in the same situation as if he had used the most expeditious diligence; but he cannot retain to satisfy himself whilst there are debts of superior dignity to his. By the act of 1786, notes are put upon the same footing with bonds, and are made superior to any simple contract debt, Avhere the debt is not liquidated, and settled and signed by the party to be rharged; of course, the debt due in the present case to the ad- ministrator cannot be satisfied by retainer in preference to the debt of the plaintiff, which is by note of hand. See "Executors and Administrators," Century Dig. §§ 1012, 1013; Decennial and Am. Dig. Key No. Series, § 265. FARRELL v. RAILROAD, 102 N. C. 390, 399-405, 9 S. E. 302. 1889. Stoppage in Transitu. [Action to recover damages for refusal to surrender a safe which plaintiffs claimed by right of stoppage in transitu. Plaintiffs alleged a sale of the safe on credit to Robertson & Rankin, and that they shipped it to them from Philadelphia to Durham, N. C, by the de- fendant company; that after shipment and before delivery to the con- signees, the plaintiffs learned that the consignees were insolvent and notified the defendant not to deliver the safe to them; that plaintiffs tendered the freight charges due for transporting the safe, but that de- fendant refused to surrender the safe to them. The defendant claimed title to the safe under a sale by attachment proceedings instituted by it against the consignees, and set up other defenses which appear in the opinion. Verdict and judgment for the plaintiffs, and defendant appealed. Affirmed.] Shepherd, J. The plaintiffs' action is based upon their alleged right to stop the property in transitu. This right "arises solely upon the insolvency of the buyer, and is ba.sed on the plain reason of justice and equity, that one man's goods shall not be applied to the payment of another man 's debts. If, therefore, after the vendor has delivered the goods out of his own possession, and put them in the hands of a carrier for delivery to the buyer (wWch. as we have seen, is such a constructive delivery as divests the vendor's lien), he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to other people." It is "highly favored on account of its intrinsic jas- tice." 2 Benj. Sales, §§ 1229-1231. It "is but an equitable ex- tension or enlargement of the vendor's common-law lien for the 4 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. price, and not an independent and distinct right." Note to section 1229, supra. "It is quite immaterial that the insolvency existed at the time of the sale, provided the vendor be ignorant of the fact at that time." Loeb v. Peters, 63 Ala. 243, and a number of eases cited in note to section 1224, Benj. Sales, supra. These last authorities fully sustain his honor in refusing the third instruction asked by the defendant. The mere fact that Rob- ertson & Rankin, the consignees, were insolvent at the time of the sale, could not defeat the lien of the plaintiffs, unless they knew of such insolvency. The charge as given was correct in this particular, and the jury having found substantially that the plaintiffs were, nothing further appearing, entitled to avail themselves of the right of stoppage in transitu, and that they exercised that right through their, agent, Mr. Fuller, we will now consider the several defenses made by the defendant. No agreement or visage having been shown to the contrary, the right of stoppage in transitu continued until the safe was actually or constructively delivered to the consignee. Id. § 1269 ; Hause V. Judson, 29 Amer. Dec. 377, and notes. The first defense, though not seriously pressed upon the argument, is that the de- fendant acquired title by reason of the sale under the attach- ment proceedings instituted by it against the consignee for ar- rearages of freight due on lumber. "The vendor's right of stoppage in transitu is paramount to all liens against the pur- chasers (Hill. Sales, 289; Blackman v. Pierce, 23 Cal. 508); even to a lien in favor of the carrier, existing by usage, for a general balance due him from the consignee (Oppenheim v. Russell, 3 Bos. & P. 42). An attachment or execution against the vendee does not preclude the stoppage in transitu, for this is not a taking possession by the vendee's authority; the proceed- ing being in invitum." Note to Hause v. Judson, supra, where a large number of authorities sustaining the text are collected. These authorities conclusively settle that the defense under the attachment proceedings cannot be maintained. The second defense rests upon the following clause of the bill of lading: "The several carriers shall have a lien upon the goods [shipped] for all arrearages of freight and charges due by the said owners or consignees on other goods." The counsel for the defendant could give us no authority in support of this defense, and hone, we think, can be found, to the effect that such a stipulation should be construed to take away this "highly-favored" and most important right of the vendor to preserve his lien, in order "that his goods may not be applied to the payment of another man's debts," much less to those of his agent to whom he delivers them for carriage. Shippers would hardly contemplate that, in accepting such a bill of lad- ing, the well-established and cherished right of stoppage in transitu was to be made dependent upon whether a distant con- Sec. 1 &.] WITHOUT JUDICIAL PROCEEDINGS. 5 signee was indebted to the carrier, and the commercial world would doubtless be surprised if it were understood that, when- ever such a stipulation was imposed upon consignors, they were in effect yielding up their lien for the purchase money, and sub- stantially pledging their goods for the payment of an existing indebtedness due their agent, the carrier, by a possible insolv- ent vendee. If such is the proper construction, we can well appreciate the language of Lord x\lvanley, in Oppenheim v. Russell, 3 Bos. & P. 42, when he said that he hoped it would "never be established that common carriers, who are bound to take all goods to be carried for a reasonable price tendered to them, may impose such a condition upon persons sending goods Dj^ them." He doubts whether an express agreement between the carrier and the consignor would be binding, and Best, J,, in Wright v. Snell, 5 Barn. & Aid. 350, in speaking generally of such contracts, said he "doubted whether a carrier could make so unjust a stipulation." Chancellor Kent, in the second volume of his Commentaries, remarks that "it was again stated as a questionable point in Wright v. Snell whether such a gen- I'ral lien could exist as between the owner of the goods and the earrier, and the claim was intimated to be unjust. It must, therefore, be considered a point still remaining to be settled by judicial decision." Page 638. It is unnecessary, however, for lis to say whether such a condition or agreement would be rea- sonable and binding, as it seems very clear to us that the stip- ulation in the present case is not susceptible of the construction contended for, and that it is entirely subordinate to the right of stoppage in transitu. The exercise of this right revested the right of possession in the plaintiffs, and, they having tendered all they owed the defendant, no interest was ever acquired by the vendee to which the claim of the defendant could attach. The third and most plausible defense is that, according to the testimony of the agent, Holt, there was a constructive deliv- ery to the consignee, and that this defeated the rights of the plaintiffs. The doctrine is well settled that "where goods are placed in th.e possession of a carrier, to be carried for the ven- dor, to be delivered to the purchaser, the transitus is not at an end . . . until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the con- signee, not as carrier, but as his agent; and the same principle will apply to a warehouseman or wharfinger." 2 Benj. Sales, supra, § 1269. Was there any such agreement in this case? The most that can be said is that the consignee offered to pledge the safe to the defendant for the freight already due on lumber. There was no actual change of possession. The safe was in the defendant's warehouse, and Holt, the agent, and the consignee were both leaning upon it. The consignee, placing his hand on it, said: "I place this safe in your hands as secur- 6 WITHOUT JUDICIAL PROCEEDINGS. [Cll. 1. ity for what I owe." There was no response whatever by Holt. He simply states that he "held the safe till some little time afterwards," when he heard that the consignee had run away, and that he sued out the attachment proceedings mentioned in the answer. The majority of us are of the opinion that there was no reasonably sufficient evidence to be submitted to the jury upon the acceptance of the offer and of delivery. There being no actual delivery, a constructive one can only be effected by a valid agreement on the part of the common carrier to hold for the consignee. Mr. Benjamin, from whom we have so largely quoted, says "that the existence of the carrier's lien for unpaid freight raises a strong presumption that the car- rier continues to hold the goods as carrier and not as ware- houseman ; and, in order to rebut this presumption [the italics are ours] there must be proof of some arrangement or agree- ment between the buyer and the carrier, whereby the latter, while retaining his lien, becomes the agent of the buyer to keep the goods for him." But, conceding that the acquiescence of Holt was some evidence of the acceptance of the offer, would this in law amount to such a deliveiy as will defeat the plain- tiffs' right? Passing by the question as to whether the defend- ant bailee was not estopped to set up such a transaction in favor of itself and against its principal (2 "Wait, Act. & Def. 57), and also the fact that the alleged agreement was not to hold as agent of the vendee, but for itself, we are of the opinion that what transpired between the defendant's agent and the vendee did not alter in the slightest degree the relation in which they stood to each other. It will be borne in mind that there was no actual delivery ; that the defendant had a lien for the freight due on the property, and under the stipulation in the bill of lading it had, as against the consignee, also a lien for the ar- rearages of freight due by him. There was no new considera- tion, and the proposition of the consignee, and its alleged ac- ceptance by the defendant, left them in precisely the same po- sition as before. It amounted virtually to the defendant's say- ing : "If you will pay the freight and arrearages, I will deliver you the safe." This was, as we have seen, the effect of the bill of lading. In the leading case upon this subject (White- head V. Anderson, 9 Mees. & "W. 517, cited with approval by Benjamin, supra), the agent of the consignee went on board of the ship when she arrived in port, and told the captain that he had come to take possession of the cargo. He went into the cabin, into which the ends of the timber projected, and saw and touched the timber. "When the agent first stated that he came to take possession, the captain made no reply, but subsequently, at the same interview, told him that he would deliver him the cargo when he was satisfied about his freight. They went ashore together, and shortly after an agent of the consignor served a .S'tC. 1 h.] WITHOUT JUDICIAL PROCEEDINGS. 7 notice of stoppage in transitvi upon the mate, who had charge of the cargo : ' ' Held that, under these circumstiinees, there was no actual possession taken of the goods by the consignees, and that, as there was no contract by the captain to hold the goods as their agent, the circunLstances did not amount to a constructive pos- session of the goods by them. There is no proof of any such contract. A promise by the captain to the agent of the con- signees is stated, but it is no more than a promise, wdthout a new consideration, to fulfill the original contract, and deliver in due course to the consighee on payment of freight, which leaves the captain in the same situation as before. After the agreement he remained a mere agent for expediting the cargo to its original destination." This, it seems to us, is conclusive of our case. Here there was no new consideration whatever moving from the vendee, nor was there any definite under- standing that the defendant was to forbear pressing the vague proceedings suggested by him. 1 Add. Cont. 11, note. There was therefore no new contract, and the defendant held the safe in the same character as he did before, when, as w^e have shown, it was subject to the paramount claim of the plaintiffs. We have been able to find no ease where a pledge of this kind has been asserted, bvit we have observed that all the cases we have examined lay down the rule that constructive delivery is only made by the carrier, either agreeing, expressly or by implica- tion, to hold as the agent of the consignee. "While the amount involved in this suit is small, we have thought it our duty, in view of the importance of the questions of law presented, to carefully examine many of the miilti- tude of cases upon the subject, and our conclusion is that his honor was correct in telling the jury that what transpired be- tween Holt and Robertson (one of the consignees) did not amount to a delivery, and was not sufficient to deprive the plaintiffs of any rights they might acquire in respect to the safe. There is no error. See Jordan v. James, 5 Ohio, 88; see "Carriers," Century Dig. §§ 247, 896, 900; Decennial and Am. Dig. Key No. Series, §§ 74, 197; "Sales," Century Dig. §§ 829, 834; Decennial and Am. Dig. Key No. Series, §§ 291, 294. WINSLOW V. WALKER, 2 N. C. 193. 1795. Liens. Trover for a boat, and a general verdict for the plaintiff, subject to the opinion of the court upon this special case, viz. : ■ The boat sued for was the property of the plaintiff, and was drifted away from the landing at Campbellton, and floated down the river 114 miles, to a part of the river about a mile wide, 8 WITHOUT JUDICIAL PEOCEEDINGS. [Ch. 1. and was there taken up by a stranger; it again got adrift and went to the New Inlet, where the river empties into the sea, ten miles wide; there it was again taken up by a stranger who Imew not the owner, nor from whence the boat had come. The boat was greatly wrecked and damaged, and in that condition was sold to the defendant, who repaired it: upon which the plaintiff demanded it, and the defendant refused to deliver it. If on the above facts the law is for the plaintiff, the judgment to be given for him on the verdict ; if for the defendant, then a nonsuit to be entered. And now upon argument it was insisted for the defendant, that the taker-up of the boat who sold it to him, had a lien on it for his salvage, to which he was entitled. 1 Ld. Eaym. 393; the case of Harford & Jones, and 2 "W. Blk. 1117, were cited. The court took time to advise, and the next day gave judg- ment for the plaintiff; being of the opinion that the right he had to detain the boat until paid for salvage, was in the nature of a demand upon the plaintiff, or a chose in action, to be en- forced by keeping possession of the boat till the plaintiff should satisfy him, which could not be transferred with the boat to another; and being founded on the possession, when he parted with that, he losl^ his lien, and could then only recover his salvage in his own name against the plaintiff. 1 Atk. 234, 235 ; 1 Burr. 494; 5 Bac. Abr. 270; Doug. 105; 4 Burr. 2214. And there was judgment for the plaintiff. In a number of instances the common law and the statutes of the several states confer upon a creditor the right to retain possession of the chattels of his debtor until the debt is satisfied. In such cases the creditor has a lien on such chattels. "A lien is a right in one man to retain that which is in his possession belonging to another till certain demands of him, the person in possession, are satisfied." Hammonds V. Barclay, 2 East, at p. 235. The best elucidation of the law of Com- mon Law Liens is in 1, Gray's Cases, 241 et seq. See also Jordan v. James, 5 Ohio, 88; 25 Cyc. 661. In the principal case the lien claimed is for salvage which is only one of many instances in which a lien is given by the common law. Many liens are given in North Carolina by the Revisal, chap. 48. See "Salvage," Century Dig. §§ 31, 106; De- cennial and Am. Dig. Key No. Series, §§ 18, 41; "Liens," Century' Dig. § 11; Decennial and Am. Dig. Key No. Series, § 16. (c) Removal of Trade Fixtures. BROOKS V. STINSON, 44 N. C. 72. 1852. Removal of Fixtures iy Tenant or Licensee. [Trespass quare clausum fregit for entering a school-house on plain- tiff's land and removing a table, benches, and some loos© plank. De- fense, that plaintiff had authorized defendants, as public school com- mittee-men, to conduct a school in the house; that the articles removed ^'ec. 2 a.] WITHOUT judici^vl proceedings. 9 were placed in the house and removed by defendants during the period covered ty their permit to conduct the school. Verdict and judgment for defendants. Appeal by plaintiff. Affirmed.] Nash, C. J. (After disposing of the question as to whether plaintiff had such a possession of the locus in quo at the time of the acts complained of, as would sustain the action.) But again: The articles taken were carried by the committee to the house and placed in it for the use of the school or school- master, and none of them had been annexed to the realty. They therefore, during the continuance of the lease, had a legal right to remove them. It is fully established, that a tenant for years may take down erections which are useful and necessary to carry on his trade or manufacture, and which enable him to carry it on with more advantage. Bac. Abr. tit. "Bx'rs." letter H; 2 Bast, S8. So he may carry away ornamental marble chimney pieces, and wainscot fixed only by screws, Elwes v. Maw, 3 East, 38 ; but he cannot, after he has left the premises, upon the expiration of his lease, return and take them away — if he does, he is a trespasser. We see no error, and the judgment is affirmed. For the right of tenants to remove trade fixtures, manure, etc., see Conron v. Glass, 84 N. E. 1105, 18 L. R. A. (N. S.) 423, and note; Munler V, Zaohary, 114 N. W. 525, 18 L. R. A. (N. S.) 572, and note; electrical contrivances and devices, Raymond v. Strickland, 52 S. E. 619, 3 L. R. A. (N. S.) 69, and note; effect of renewing lease during the term upon right of removal, Wadman v. Burke, 1 L. R. A. (N. S.) 1192, and note; gas stoves and fixtures, window and door screens and shades, steam heating apparatus, Hook v. Bolton, 85 N. E. 175, 17 L. R. A. (N. S.) 699, and note. See "Fixtures," Century Dig. §§ 22-31; Decennial and Am. Dig. Key No. Series, §§ 14-17. Sec. 2. Eemedibs by the Act of the Party Injured. (a) Self-defense. POND V. THE PEOPLE, 8 Mich. 150, 175-179. 1860. Life and Limb of Self, Family, and Servants. [Pond was convicted of manslaughter, in the district court of Macki- nac county, being tried upon an Information for the murder of Isaac Blanchard. He took the case to the supreme court by writ of error. Judgment reversed. It appeared in evidence that Pond together with his wife, three children under 13, and two hired men, Whitney and Cull, lived on his own premises, and that he carried on the business of fishing. On the premises was a small dwelling, occupied by Pond and his family, and, 36 feet therefrom, another house used as a net-house in which Cull and the other hired man slept. Within a week before the homicide, one Plant said, in the presence of Pond's daughter, that he would whip Pond, which threat was communicated to him. The deceased was pres- 10 WITHOUT JUDICIAL PROCEEDIKOIS. [Ch. 1. ent when the threat was made. Later in the day Plant and a number of persons, including deceased, surrounded Pond, and Plant struck him in the face with his flst and kicked him. Pond did not resent this but drank whiskey with Plant. Pond then escaped to the woods. That night the same "gang," with about 15 or 20 associates, tore down the door of the net-house where Pond's servants were asleep; demanded ro be let into Pond's dwelling; and made a search for him, but refused to tell what they wanted with him. Later in the week Plant and de- ceased met Pond and Plant again threatened to whip him. That night they went to Pond's house and demanded him. He concealed himself under the bed. After committing other acts of violence. Plant and deceased departed. Thereafter Pond borrowed a shot-gun, loaded with pigeon shot, from his brother-in-law, who lived a short distance from him, and returned to his home. Later on the "gang" returned to Pond's and asked his wife to admit them to his dwelling that they might search for him. Upon her refusal, they went to the net-house, in which Cull was asleep, and tore down part of it and beat OuU. Pond went to the door and asked who was tearing down his net-house. He re- ceived no reply, but heard cries of distress from a woman and child and from Cull. He then cried out loudly, "Leave, or I'll shoot." The noise continuing, he gave the same warning again and in a few sec- onds fired. The deceased was found dead next morning. Pond imme- diately surrendered himself. There were several exceptions to the judge's refusal to give certain special instructions and to the charge as given. The gist of all which was, so far as relates to self-defense, that the jury were instructed, contrary to the prisoner's prayers, that the prisoner was not excused or justified in shooting upon an apparent and reasonably founded cause for apprehending injury of a serious or felonious character to himself, his property, family and servants; but that he must show the actual existence of such danger.] Campbell. J. . . In order to determine the materi- ality of the questions of law raised, it becomes necessary to de- termine under what circumstances homicide is excusable or jus- tifiable. In doing this, it will be proper to advert merely to those instances which may be regarded as coming nearest to the circumstances of the case before us. The other cases 'we are not called \ipon to define or consider; and what we say is to be interpreted by the case before us. The only variety of excusable homicide (as contradistin- guished from justifiable homicide at common law) which we need advert to, is that which is technically called homicide se aut sua defendendo, and which embraces the defense of one's own life, or that of his family, relatives, or. dependents, within those relations where the law permits the defense of others as of one's self. Practically, so far as punishment is concerned, there is no distinction with us between excusable and jtisti- fiable homicide ; but a resort to common-law distinctions will nevertheless be convenient, in order to illustrate the difference between the various instances of homicide in repelling assaults, according as they are, or are not, felonious. Homicide se de- fendendo was excusable at common law when it occurred in a sudden affray, or in repelling an attack not made with a felo- Sec. 2 a.\ WITHOUT JUDICIAL PROCEEDINGS. 11 nious design. According to Mr. ITawkius, it was excusable and not justifiable, because, occurring in a quarrel, it generally assumed some fault on both sides. Hawk. P. C, B. 1, ch. 28, sec. 24. In these cases, the original assault not being with a felonious intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused unless the slayer does all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his adversary's way, and has no right to stand up and resist if he can safely retreat or escape. See 2 Bish. Cr. L. sees. 543 to 552, 560 to 562. 564 to 568 ; People v. Sullivan, 3 Seld. 396 ; 1 Russ. Cr. 660, et seq. Mr. Russell lays down the rule very concisely as follows (p. 661) : "The party assaulted must therefore flee, as far as he conveniently can, either by reason of some wall, ditch, or other impediment or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm; and' then, in his de- fense, he may kill his assailant instantly. Before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was nec- essarj^ ; that he did all that he could to avoid it ; and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him a reasonable apprehen- sion that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape, in such case, if he retreated as far as he could, he would be justified." A man may defend his family, his servants, or his master, whenever he may defend himself. [Compare Lew- ard V. Basely, inserted post.] How much farther this mutual right exists, it is unnecessary in this ease to consider. See Bish. Cr. L. sec. 581, and eases cited; 1 Russ. Cr. 62; 4 Blk. Com. 184. There are many curious and nice questions concerning the ex- tent of the right of self-defense, where the assailed party is at fault. But as neither Pond nor Cull were in any way to blame in bringing about the events of Friday night, which led to the shooting of Blanchard, it is not important to examine them. The danger to be resisted must be to life, or of serious bodily harm of a permanent character; and it must be unavoidable by other means. Of course, we refer to means within the power of the slayer, so far as he is able to judge from the circumstances as they appear to him at the time. A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if 12 WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. he can otherwise arrest or repel the assailant : 2 Bish. Or. L. sec. 569; 3 Greenl. Bv. see. 117; Hawk. P C, B. 1, eh. 28, sec. 23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable. The essential difference between excusable and justifiable homicide rests not merely in the fact that at common law the one was felonious, although pardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a pub- lic duty ; and the question of personal danger did not necessarily arise, although it does generally. It is held to be the duty of every man who sees a felony at- tempted by violence, to prevent it if possible, and in the per- formance of that duty, which is an active one, there is a legal right to use all necessary means to make the resistance effectual. Where a felonious act is not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and, therefore, no justifica- tion, for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony, and in those it is lawful to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resist- ing is not obliged to retreat, but may pursue his adversary, if necessary, till he finds himself out of danger. Life may not properly be taken under this rule where the evil may be pre- vented by other means within the power of the person who in- terferes against the felon. Reasonable apprehension, however, is sufficient here, precisely as in all other cases. It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offense, which requires the combina- tion of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who cannot otherwise suppress them, or defend them- selves from them, may justify homicide in killing them, as it is their right and duty to aid in preserving the peace. And per- haps no case can arise where a felonious attempt by a single individual will be as likely to inspire terror as the turbulent acts of rioters. And a very limited Imowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or the property of others, of such a nature as to in- volve excitement and provoke resistance, they are not likely to stop at halfway measures, or to scan closely the dividing line between felonies and misdemeanors. But ^\hen the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression, and a man who defends himself, his Sec. 2 a.] without judicial proceedings. 13 family or his property, under such circumstances, is justified in making as complete a defense as is necessary. "When we look at the facts of this case, we find veiy strong circumstances to bring the act of Pond within each of the de- fenses we have referred to. . . . It was for the jury to con- sider the whole chain of proof, but if they believed the evidence as spread out upon the case, we feel constrained to say that there are very few of the precedents which have shown stronger grounds of justification than those which are found here. In- stead of reckless ferocity, the facts display a very commendable moderation. . . . We think there was error in requiring the actual instead of apparent and reasonably founded causes of apprehension of injury ; in holding that the protection of the net-house could not be made by using a dangerous weapon ; and that the conduct of the assailing party was not felonious; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resisting a felony. . . . The judgment below must be reversed, and a new trial granted. The court further held that the net-house was within the curtilage, and, being occupied as a permanent dwelling by Pond's servants, it was a felony to break into it; and that whether such breaking was a felony at common law or under the Michigan statute was immaterial so far as this case is conce,rned. "The law of self-defense justifies an act done in honest and reason- able belief of immediate danger; and, if an injury be thereby inflicted upon the person from whom the danger was apprehended, no liability, civil or criminal, follows. [That no civil liability follows, see also 23 L. R,. A. (N. S.) 996.] "If an act of an employee be lawful and one which he is justified in doing, and which casts no personal responsibility upon him, no re- sponsibility attaches to his employer therefor." N. 0. & N. B. R. R. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, headnotes 2 and 3. Compare Dan- iel V. R. R., 117 N. C. 592, 23 S. E. 327. "When a man puts himself in a state of resistance and openly defies the ofiicers of the law. he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the. excuse of self- defense." State V. Horner, 139 N. C. 603, headnote 7, 52 S. E. 136. "When the prisoner knew that the deceased was a deputy sheriff, and that he had a warrant for his arrest for a misdemeanor, it was his duty to submit to arrest. In resisting it, with a gun in his hand, it is not open to him to say that he acted in self-defense; and this is not affected by the fact that the officer was not justified in shooting him to make the arrest." Ibid, headnote 6. See "Homicide," Century Dig. §§ 131-183; Decennial and Am. Dig. Key No. Series, §§ 101-123; "Criminal Law," Century Dig. § 3336; De- cennial and Am. Dig. Key No. Series, § 1225. ' STATE V. HOUGH, 138 N. C. 663, 666-668, 50 S. E. 709. 1905. Life and Limh. Retreating to the Wall. [Indictment for the murder of George Hartsell. Conviction of man- slaughter. Appeal by prisoner. In the course of the opinion it is saidr] li WITHOUT JUDICI.VL PROCEEDINGS. [Ch. 1. Brown, J. It is undoubtedly true that if two en- gage in a fight upon a sudden quarrel, one being unarmed and the other armed, and one kills the other with a deadly weapon, it is at least manslaughter. State v. Curry, 46 N. C. 280. But if the defendant's evidence is to be believed, this was not a fight upon a sudden quarrel. He had a right to suppose that the deceased was advancing on him for the purpose of carrying into execution his previous threats; and if, under such circum- stances, the jury should find that the defendant had reasonable ground to believe that the deceased intended to do him great })odily harm, then he had a right to defend himself, and if the jury should find that the use of a deadly weapon under such circumstances, considering the enormous difference in the size and strength of the two men, was necessarj' in order to make his defense effectual, then the defendant would not be guilty. If the assault was committed under such circumstances as would naturally induce the defendant to believe that the deceased was capable of doing him great bodily harm, and intended to do it, then the law would excuse the killing, because any man who is not himself legally in fault has the right to save his own life, or to prevent enormous bodily harm to himself. State v. Lipscomb, 134 N. C. 692, 47 S. E. 44. The general rule is that "one may oppose another attempting the perpetration of a felony, if need be. to the taking of the felon's life, as, in the case of a person attacked by another intending to kill him, who thereupon kills his assailant, he is justified." 2 Bishop's Criminal Law, § 332. There is a distinction made by the text-writers on criminal law, which seems to be reasonable and supported by authority, be- tween assaults with felonious intent and assaults without felo- nious intent. ' ' In the latter the person assaulted may not stand Tiis ground and kill his adversary if there is any way of escape open to him, though he is allowed to rgpel force with force and give blow for blow. In the former class, where the attack is made with murderous intent, the person attacked is under no ol)ligation to fly, but may stand his ground and kill his adver- sary, if need be." 2 Bishop's Criminal Law, § 6333, and cases cited. It is said in 1 East, Pleas of the Crown, 271: "A man may repel force by force in defense of his person, habitation, or property against one who manife,stly intends or endeavors by violence to commit a felony, such as murder, rape, burglary, robbery, and the like, upon either. In these eases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and, if he kill him in so doing, it is called justifiable .self-defense." The American doctrine is to the same effect. See State v. Dixon, 75 N. C. 275. It is true, there is no evidence that the deceased was armed ^\ith a deadly weapon. At least, none was exhibited. But the evidence does show that the deceased had sent word to the defend- ant that he intended to kill him. and the defendant had a right to suppose that the deceased was endeavoring to carry out his Sec. 2 .a.] without judicial proceedings. 15 threat, and was prepared to do it. Then, again, the evidence shows there was an enormous disparity in the relative strength and power of the defendant and deceased; the one being a weaMy, delicate man, of very small stature; the other, in com- parison, being a giant of violent nature, and evidently capable of either killing the defendant or doing him great bodily harm without the aid of a weapon. The defendant was on his own premises, engaged in his peaceful pursuits, at the time the de- ceased advanced on him in a manner giving unmistakable evi- dence of his purpose to do the defenda.nt bodily harm. How was the defendant expected to receive him? In the oft-quoted lan- guage of Judge Pearson in State v. Floyd, 51 N. C. 392. "One cannot be expected t-o encounter a lion as he would a lamb," and the measure of force which the defendant was permitted to u.se under such circunLstances ought not to be weighed in "golden scales." New trial. "On the question of the applicability of the rule of reasonable doubt to self-defense in homicide, or the requisite proof of self-defense, the authorities, as shown by a note in 19 L. R. A. (N. S.) 483, are not har- monious, some cases going to the extent of holding that the defendant must show self-defense beyond a reasonable doubt, and some to the other extreme of holding that the burden is upon the prosecution af- firmatively to prove the absence of self-defense. Between these two extreme views the cases apparently take every possible position. In the case to which the note is appended — Com. v. Palmer (Pa.) 71 Atl. 100, it is held that, where an intentional killing by the use of a deadly weapon has been established, accused has the burden of showing that it was in self-defense by a fair preponderance of the tacts." Case and Comment. It is ruled in Miller v. State, 139 Wis. 57 (1909), that the common law rule as to "retreating to the wall" — the "flight rule" — is no longer the law. For an elaborate note on "retreat to the wall," see 2 L. R. A. (N. S.) 49; for plea of self-defense when homicide is committed in resisting an officer, see State v. Durham, 141 N. C. 741, 53 S. E. 720, 5 L. R. A. (N. S.) 1016, and note. See "Homicide," Century Dig. §§ 138-176; De- cennial and Am. Dig. Key No. Series, §§ 108-121. LEWARD ET UX. v. BASELY, 1 Lord Raymond, 62. 1696. Defense of Wife, Husband, Master. Extent of Force Allowed. Trespass, assault and battery, for a battery committed upon the wife. The defendant pleads de son assault demesne of the wife. The plaintiffs reply, that the defendant went out to fight the husband, and that she being desirous to assist her husband, and to keep him from lacing wounded, insultum fecit upon the defendant. The defendant demurs. And Mr. Carthew argued, that this insultum fecit was ill. And for that he cited a case between Jones and Tresillian, intr. Trin. 21 Car. 2 B. R. Rot. 841 ; 1 Mod. 36 ; 1 Sid. 441 ; 1 Lev. 282 ; 2 Keb. 507. Trespass, assault and battery; the defendant pleaded de son assault de- 16 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. mesne; the plaintiff replied, that he was possessed of a close called Cupner's close, and that the defendant broke the gate and chased his horses in the close, and the plaintiff for defending his possession molliter insultum fecit upon the defendant: and upon demurrer adjudged a bad replication, for he should have said molliter manus imposuit: but he could not justify an as- sault in defense of his possession. And this case the court agreed to be good law, but different from the present ease; for this is a justifiable assault, for the wife may lawfully make an assault to keep her husband from harm, and she has pleaded it so. In the same manner a servant may justify an assault in de- fense of his master, but not e contra, because the master might have an action per quod servitium amisit. So in this case, if the defendant lifted his hand to strike the husband, the wife might well justify an assault to prevent the blow. And if the fact had been otherwise, the defendant ought to have rejoined, de son tort demesne, and then it had been against the plaintiff. But a man cannot justify an assault in defense of his horse, or his possession, for there he ought to say, molliter manus imposuit. Judgment for the plaintiff, nisi, etc. See State v. Cook, 59 S. E. 862, 15 L. R. A. (N. S.) 1013, and note; Pond V. The People, inserted in ch. 1, sec. 2 (a); also State v. Bullock, 91 N. C. 614; State v. Johnson, 75 N. C. 174; 2 Kent, *261; 3 Cyc. 1075; 14 L. R. A. 317, and note; Johnson v. Perry, 56 Vt. 703, inserted in ch. 1, sec. 2, (b). See "Assault and Battery," Century Dig. § 12; De- cennial and Am. Dig. Key No. Series, § 14. PERRY V. PHIPPS, 32 N. C. 259. 1849. Defense of Person. Unnecessary Violence. [Action of trespass for killing plaintiff's dog on the premises of plaintiff. Verdict and judgment for plaintiff. Apeal by defendant. Affirmed. Defendant entered the yard of plaintiff on a visit. The dog attacked him and was only prevented from biting him by being driven off by plaintiff's daughter. After the dog had been driven off and while it wasi going under the house, It was shot and killed by the defendant, against the protest of the plaintiff's daughter. Defendant offered to show that "the dog had attacked persons off the plaintiff's land" on three occasions; but the evidence was rejected. The Jury were in- structed that "defendant was not justifiable in killing the dog unless in defense of himself; and if the dog had retreated and was still re- treating, the jury might infer therefrom that the defendant did not shoot the dog to protect himself."] EuFEiN, C. J. . . . The instructions appear to the court to be unexceptionable. A person is not bound to stand quietly and be bitten by a dog, nor to give him what might be called a fair fight among men. But if a fierce and vicious dog be allowed to go at large, and he runs at a person, as he lawfully gets to a house, or in passing along the road, apparently to set on the per- Sec. 2 a.] WITHOUT JUDICIAL PR0CEEDIX6S. 17 son, or, for example, on the horse he is riding, it seems but rea- sonable the person should protect himself from the injury of a bite to himself or his horse, by killing the dog; for, although a man has a right to keep a dog for the protection of his house and yard, yet he ought to keep him secured, and not let him loose and uncontrolled at such hours and in such places as will en- danger peaceable and honest people engaged in their lawful business. If, therefore, this dog were one of the kind supposed and the defendant had shot him, as he came at him, and when he had reasonable grounds to think, that the dog could not be restrained by the owner or his family, and would bite him, we should hold, that he did no more than he had a right to do. But when the plaintiff's family were at home, and, by their imme- diate interference and commands and punishment, governed and drove away the dog, so as not only to prevent him from biting the defendant at that time, but also to save the defendant from all danger then, by driving the dog away, the killing of the dog after that, and against the urgent entreaties of the family, could have been only on the pretense, and not on the reality of protecting the defendant from an attack at that time, and the circumstances were properly left to the jury, as evidence on which they might find, that the defendant did not act on the defensive. Judgment affirmed. See "Animals," Century Dig. § 252; Decennial and Am. Dig. Key No. Series, § 73. STATE V. CRATON, 28 N. C. 164, 174-176. 1845. A Husband May "Preserve His Honor." [Craton was Indicted for the murder of Harrison. Verdict and judg- ment against defendant. Appeal by defendant. Affirmed. The material facts, as to the point presented by that part of the opinion here Inserted, may be thus summarized: Harrison had reason to believe that Improper relations existed, or were likely to exist, be- tween his wife and Craton. On the day of the homicide Harrison's wife insisted upon riding behind Craton on a horse, against her hus- band's protest. Craton and the woman being on one horse and Har- rison on another, they all proceeded along the same road for some dis- tance. Then Harrison demanded that Craton surrender his wife to him, threatening to kill him if he refused. After several demands of this kind and sundry threats as above, Harrison turned his horse across the road so as to intercept Craton, and, with an open knife in his hand, again demanded the surrender of his wife by Craton, threat- ening to kill Craton, should he refuse. Craton turned out of the road; but Harrison got before him again. Craton dismounted and told Har- rison that he would beat him if he did not leave. Craton then killed Harrison by striking him with a stick.] KuFPiN, C. J. . . . The question, then, in this ease, turns upon the right of the deceased to coerce the prisoner to surrender to him his wife, and that depends much on the author- ity of a husband over his wife. There is no suspicion, that Remedies — 2. 18 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. the prisoner detained the wife against her will. If that had been the case, the husband could have justified a battery in her defense and for her rescue. But, though she was detained by the prisoner with her consent, the court is of opinion, that under the circumstances the deceased had a right, after demanding his wife, to stop the prisoner, as he did, until he should give her up. In general, a man has a right to the exclusive custody of his wife. It may be true, that any person has a right to pro- tect her from the violence of her husband, and to take her from cruel usage under his hand. And it may also be true, that the husband would not have a right to take her by force from the house of a parent or any proper protection during a difference between them, nor, indeed, to confine her, where there is not plainly a sufficient reason for imposing the restraint upon her. Rut in Lister's Case, 8 Mod. 22, 1 Str. 478, it was agreed by all the court, that- where a wife makes an undue use of her liberty, as by going into lewd company, it is lawful for the husband, in order to preserve his honor, to lay his wife under a restraint; though when nothing of that appears, he cannot justify depriving her of her liberty. Now, that is a full authority, and founded, as we think, upon the very best reason, that Harrison might have restrained his wiie by force, from criminal conversation M'ith the prisoner; and, by consequence, that he might compel her to leave the society of the prisoner, if he had any reasonable grounds to suspect, that those persons had perpetrated, or that they were forming the guilty purpose of perpetrating, a violation of his rights and honor, or were contracting those regards towards each other, which would probably result in that stigma. That such was the state of the case between these parties, there is very strong ground to affirm. The avowal by the prisoner of an affection for this woman — the inference that she returned it, to be deduced from numerous circumstances, as that he said he could elope and leave the country with her ; and the familiarity ^vith which she lay on the same bed with the prisoner, with her arm around his neck, and they both refused to change their sit- uation, though the husband remonstrated ; her pertinaciously in- sisting to ride home behind the prisoner, and refusing to go in any other manner; her being found by the husband on the road ■with the prisoner alone, and not also in the company of Mrs. Garman, her sister-in-law; and the oft-repeated refusals of both the wife and the prisoner to let the husband take her, after he overtook them, and after he had explicitly stated, as proved by the prisoner's witness, Murphy, that the reason why he insisted on having her was, that the prisoner kept her; these circum- stances leave no room to doubt, that the husband entertained the belief, and that upon strong grounds of presumption, that it was essential to his wife's purity and his honor, that he should separate her from the company of the prisoner. Such a cause would justify the husband in effecting that end by compulsion on his wife, for it was obvious that nothing short of it would StC. 2 a.] WITHOUT JUDICIAL PROCEEDINGS. 19 be effectual. And it would seem necesarily to follow, that he might use actual force towards the paramour also, in order to regain his wife from him. But we need not consider that, as ^ve have already seen, there was no actual assault by the deceased. There was merely a stopping of the prisoner by the deceased — drawing up his horse in front of the prisoner several times, iiccompanied by a demand for his wife, and a declaration that the prisoner should not go on, unless he gave up the wife. Those acts, we think, were not an injurious restraint on the prisoner's liberty, but only a lawful impediment to his carrying nway the deceased's wife, to her ruin and the husband's dis- honor. There was, consequently, no provocation to extenuate the killing of Harrison. See Drysdale v. State, 83 Ga. 744, 10 S. E. 358, 6 L. R. A. 424, and note; State v. Weathers, 98 N. C. 685, 4 S. E. 512; State v. Young, 96 Pac. — , 18 L. R. A. (N. S.) 688, and note. See "Homicide," Century Dig. § 33; Decennial and Am. Dig. Key No. Series, § 20. STATE V. HARMAN, 78 N. C. 515. 1878. A Husiand May "Preserve His Honor." [Harman was indicted for the murder of Trivett. Verdict and judg- ment against defendant, and he appealed. Reversed. The facts ap- pear in the opinion. Only so much of the opinion as bears upon the point under consideration is inserted.] Rbade, J. 1. "Should he deal with our sister as with an harlot?" is the voice of unrestrained human nature, since Shechem defiled the daughter of Jacob and was slain by her brothers. Gen. ch. 3-1. We have restrained human nature in so far as we say, you shall not slay in redress of a past wrong, but if you slay the wrongdoer in the very act, it will not be murder, but man- slaughter. The redress for past offenses must be sought through the process of the courts. In the case before us, the prisoner looked through a crack of his house, and saw the deceased, whom he had before suspected, with his arms around his wife's neck and saw enough to satisfy him, and ran around to the door and into his house, when the deceased came at him with a knife, and he killed him. The situation 'was not the very act, but it was severely proximate, and fine distinctions need not be made. This is clearly not murder, but manslaughter. State v. Samuel, 48 N. C. 74; State V. John, 30 N. C. 330. . . . Venire de novo. In State v. Neville, 51 N. C. at pp. 433, 434, it is said by Ruffin, J.: "A husband finding a man violating or attempting to violate his wife, and killing him on the spot, might plead that furor brevis which so atrocious a wrong, both to the wife and to the husband, would naturally 20 -WITHOUT JUDICI.VL PROCEEDINGS. [Ch. 1. inspire; nay, if needful to prevent the accomplishment of the purpose, we think that he would be justified in slaying him; as the woman would be. With respect to the case of adultery the law is found in the most ancient archives of the common law, . . and a court at this day has no more authority to interpolate new qualifica- tions or exceptions into it, than power to make a statute. . Homicide is extenuated to manslaughter, not by the fact that it was perpetrated in a fury of high passion, but by such fury's being excited by a present provocation which the law deems sufficient for the time to deprive men in general of that power of reasoning and reflection which ought to lead them to appeal for redress to the law, and instead thereof prompts them to take it into their own hands. The wrong is thus infallibly known, and the wrong-doer is thus made instantly to expiate it with his blood. But where a husband only hears of the adultery of his wife, no matter how well authenticated the information may be, or how much credence he may give to the informer, and kills either the wife or her paramour, he does it not upon present provoca- tion, but for a past wrong — a grievous one indeed! but it is evident he kills for revenge. . It is obvious that these observations apply with equal force to an alleged rape or an attempt to commit a rape on the wife at a past time." "The human cur who has invaded the domestic fold, and who is likely to invade it further, may be killed though the injured person does not catch him in the very act." Powell, J., in Miller v. State, 63 S. E. at mid. p. 573, inserted post in this section. "See "Homicide," Century Dig. § 71; Decennial and Am. Dig. Key No. Series, § 47. STATE V. RAMSEY, 50 N. C. 195. 1857. Defense of Liberty. Excessive Force. [Indictment for the murder of Benjamin Walker. Verdict and judg- ment against defendant, and he appealed. Reversed. The facts are set out in the opinion.] Battle, J. There are some cases of homicide which are so near the dividing line between manslaughter and murder upon implied malice, that it is difficult to ascertain on which side they are to be found. The present ease is one of that number, and it is only after a full examination of various instances of killing upon provocation more or less slight, and reflection upon the principles on which they have been decided, that we have been enabled to determine in which grade of guilt it is to be classed. In the case of the State v. Curry, 46 N. C. 280, we attempted the difficult task of stating, with some precision, the general rule, with the exceptions to it, which the .judges and the sages of the law have established upon this subject. The gen- eral rule is, that a killing upon provocation is not murder, but manslaughter. But there are three well-defined exceptions: "1. "Where there is a provocation, no matter how strong, if the killing is done in an unusual manner, evincing thereby de- liberate wickedness of heart, it is murder. "2. "Where there is but slight provocation, if the killing is done with an excess of violence out of all proportion to the provocation, it is murder. Sec. 2 a.] without judicial proceedings. 21 "3. "Where the right to chastise is abused, if the measure of chastisement, or the weapons used, be likely to kill, it is murder. ' ' His Honor in the court below thought this case came within the second exception to the general rule, and the question is whether the circumstances, under which the homicide was com- mitted, justify his opinion. In the consideration of this question, the first inquiry which is to be made is, whether the provocation which the prisoner re- ceived before he struck the fatal blow, is to be deemed a slight or trivial one, as it was held to be by his Plonor. The injurious and unlawful restraint of a person's liberty, is undoubtedly considered a provocation of a grade sufficient to extenuate a killing; as where a creditor placed a man at a chamber-door of his debtor with a sword undrawn, to prevent him from escaping, while a bailiff was sent for to arrest him; and the debtor stabbed the creditor, who was discoursing with him in the chamber, it was held to be manslaughter only. Rex v. Buckner, Style's Rep. 467. So, where a sergeant in the army laid hold of a fifer, and insisted upon carrying him to prison; the fifer resisted; and whilst the sergeant had hold of him to force him, he drew the sergeant's sword, plunged it into his body, and killed him. The sergeant had no right to make the arrest, except under the articles of war and they were not proved. "Buller, J., consid- ered it in two lights; first, if the sergeant had authority; and secondly, if he had not, on account of the coolness, deliberation and reflection, with which the stab was given." The jury found the prisoner guilty of murder; but the judges were unan- imous that, as the articles of war were not proved, to show the authority of the sergeant to arrest, the conviction was wrong. Rex V. Withers, reported in East's P. C. p. 233. See also 1 Russ. on Cr. and M. 488. The same doctrine was recognized as law in this state in the case of State v, Craton, 28 N. 0. 173, where the two cases, above mentioned, were cited with approba- tion. It is not stated in either case, whether the illegal restraint of the prisoner's liberty was deemed a slight or a great provo- cation; but we must suppose that it could not have been either slight or trivial in the case of Withers, else the judges would hardly have been unanimous in holding that an act of stabbing with a very deadly weapon, done apparently "-with coolness, deliberation and reflection," was only manslaughter. The cir- cumstances under which the homicide was committed m the present ease, made out a case of provocation, certainly not less aggravated than in that of Withers. [FACTS.] The parties were neighbors, friends, and distant relatives, and had been drinking together in a friendly manner only a short time before the fatal transaction. The prisoner got his horse, mounted him and took his bag, having in it a jug containing a gallon of molasses, and started home. lie had 22 WITHOUT JUDICLU. PROCEEDINGS. [Ch. 1. proceeded about twenty or thirty steps, when the deceased, who was drunk, called to him to stop and come back and take another drink. He did stop, and the deceased came up and took hold of the reins of his bridle and would not let him go. The prisoner tried to get loose, but the deceased held on until the bridle rein broke. He then became angry and got off his horse and struck the deceased with his jug in the bag. This was from ten min- utes to three quarters of an hour after the deceased stopped the prisoner, the witnesses differing as to the length of time the parties were together before the blow was struck. When that was done, both the prisoner and the deceased fell to the ground, and, upon rising, the former knocked the latter down again with the jug, and then struck him, while down, two more blows with the jug which was still in the bag. The prisoner, then saying to the deceased, ' ' damn you, lie there, ' ' mounted his horse and rode off. ' ' It cannot be denied that the act of the deceased was an illegal restraint of the prisoner's liberty, nor that his holding on to the bridle rein, against his remonstrances, until the rein broke, was well calculated to excite his passions, and they naturally Xirompted him to strike the deceased with what was most con- venient, which was the jug in the bag then in his hands. The fall was well calculated to excite his passions still higher; and then, to strike again and again with what he still had in his hands, was the impulse of blind fury. There was no appear- ance of "coolness, deliberation and reflection," in his conduct, and the exclamation which follows, "damn you, lie there," was the dictate, and the evidence, of the furor brevis, which had so fatally expended itself. That the act of the prisoner was highly culpable, no one can deny, yet no one can say that it did not pro- ceed from the transport of passion naturally excited by the un- lawful conduct of the deceased. It was the act of an infirm human being, during the brief period when the sway of his reason was disturbed, and before it could be calmed by reflection. He did not seek an instrument of death; and though he used a deadly weapon, it was one which the deceased, by making it necessary for him to dismount, compelled him to have in his hands at the moment. "We do not think that the provocation was slight, nor was it great. It was sufficient to arouse passion even in an ordinarily well-balanced mind, and the killing, though done with an excess of violence, was not out of all proportion to the provocation. Our opinion,' therefore, is, that the conviction for murder was wrong, and as it was produced by an improper charge from the court to the jury, the judgment must be reversed, and a venire de novo awarded. See "Homicide," Century Dig. § 67; Decennial and Am. Dig. Key No. Series, § 43. Sec. 2 a.] without judicial proceedings. 23 PLOOP V. PUTNAM, 81 Vt. 471, 71 Atl. Rep. 188. 1908. Self-Preservation . [Ploof sued Putnam for damages resulting from the act of Putnam's servant in unmooring Ploof's boat from Putnam's dock during a storm- Defendant demurred to tlie declaration. Demurrer overruled. Judg- ment for plaintiff. Defendant appealed. Affirmed.] MuNSON. J. It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant 's servant ; that the plaintiff was then possessed of and sailing upon naiA lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein ^vere placed in great danger of destruction ; that, to save these from destruction or in- jury, the plaintiff was compelled to, and did. moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon it was driven upon the shore by the tem- pest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts — one in tres- pass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disre- gard of this duty, negligently, carelessly, and wrongfully un- moored the sloop. Both counts are demurred to generally. There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and in- terferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Paph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog. trespass would not lie. In 2-4 WITHOUT JUDICIAL PEOCEEDINGS. [CIl. 1. trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pond, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64 ; Vin. Ab. Trespass, H. a, 4, pi. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the waj'' and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pi. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoin- ing land without becoming a trespasser Ijecause of the necessity, rienn's Case, W. Jones, 296; Campbell v. Race, 7 Gush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or de- stroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a, 4, pi. 24, K. a, pi. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restor- ing to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwick v. Sterry, 1 B. & Ad. 831. This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pi. 26. One may sacrifice the per- sonal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its con- tents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not east out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safe- guard the life of a man. It is clear that an entry upon the land of another may be justified by necessity, and that the declara- tion before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allega- Sec. 2 a.\ without judicial proceedings. 25 tions are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock ; and the details of the situa- tion which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable, irre- spective of circumstance, and the question must be left for ad- judication upon proceedings had with reference to the evidence or the charge. The defendant insists that the counts , are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act. and that the allegations as a whole fairly indicate that the servant un- moored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words "willfully and designedly" in one count, and "negligently, carelessly, and wrongfully" in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the serv- ant was acting within the scope of his employment. 13 Bnc. PI. & Pr. 922 ; Voegel v. Picket Marble Co. 49 Mo. App. 643 ; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also. Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125. Judgment affirmed and cause remanded. See the note to the principal case in 20 L. R. A. (N. S.) 152. See Laidlaw v. Russell Sage, 158 N. Y. 73, at pp. 89 et seq., 52 N. E. 679, for an interesting discussion, from the standpoint of the law, of the maxim, "self-preservation is the first law of nature," and of the prin- ciple, that, when it is a question which of two men shall suffer, each is justified in doing the best he can for himself. — "Every man for him- self, God for use all, and the devil take the hindmost," so to speak. See "Torts," Century Dig. §§ 3, 33; Decennial and Am. Dig. Key No. Series, §§ 3, 26. SIMPSON V. STATE, 59 Ala. 1, 31 Am. Rep. 1. 1877. Defense of Property. Spring Guns, etc. [Indictment, under Rev. Code of Alabama, s. 3670, for assault with intent to murder Michael Ford. Ford was injured by a spring gun upon Simpson's land. Verdict and judgment against Simpson, who carried the case to the Supreme Court by writ of error. Reversed. Only so much of the opinion is inserted as discusses the right of the owner of premises to protect his property from trespassers by such means as spring guns, and the liabilities incurred by the use of such instruments.] 26 WITHOUT JUDICI.VL PROCEEDINGS. [CJl. 1. Beickell, C. J. . The particular facts of the case in OBe phase in which the evidence presents it, are so interwoven with the remaining instructions, that a determination of the primary question they involve is necessary to a correct under- standing of them. This question is the right of a landowner to plant spring guns on his premises, by which trespassers may be wounded, and what is his liability, if thereby a trespasser receives grievous bodily harm. "Whether he was civilly liable at common law, Avas agitated in Deane v. Clayton, 7 Taunt. 518, but not decided, the judges being equally divided in opinion. In Ilott V. Wilkes, 3 B. & Aid. 304, the Court of King's Bench unanimously decided that a "trespasser having knowledge that there are spring gvins in a wood, although he may be ignorant of the particular spots where they are placed, cannot maintain an action for an injury received in consequence of his accident- ally treading on the latent wire communicating with the gun, and thereby letting it off." Statutes followed soon after this decision, rendering the setting or placing spring guns, and other like agencies calculated to destroy human life, or to inflict grievous bodily harm on trespassers, or others coming in con- tact with them, a misdemeanor, 1 Russ. Cr. 783. It is not our province to deny that the decision in Ilott v. "Wilkes is a correct exposition of the common law of England as it then existed. The common law of England is not in all respects the common law of this country. Vanness v. Packard, 2 Pet. 144. This court has frequently said that, in this state, only its general principles, which are adapted to our situation, and not incon- sistent with our policv, legislation and institutions, are of force, and prevail. State v. Cawood, 2 Stew, 360; N, & C, R, R, Co, V. Peacock. 25 Ala. 229 ; Barlow v. Lambert, 28 id. 704. "We concur in the conclusions reached by the Supreme Court of Connecticut in Johnson v. Patterson, 14 Conn. 1; State v. Moore, 31 id. 479, after a careful examination, that the prin- ciple announced in Ilott v. "Wilkes is not in harmony with our conditions or our institutions, and that it had its origin in a state of society not existing here, and the necessity for the pro- tection to a species of property not here recognized, or if rec- ognized, of less importance and value than the legislation of Great Britain, and the common law there prevailing attached to it. It is a settled principle of our law. that every one has the right to defend his person and property against unlawful vio- lence, and may employ as much force as is necessary to prevent its invasion. Property would be of little value, if the o^vner was bound to stand with folded arms and suffer it to be taken by him who is bold and imscrupulous enough to seize it. But when it is said a man may rightfully use as much force as is necessary for the protection of his person and property, it must be recollected the principle is subject to this most important qiialification, that he shall not. except in extreme cases, inflict Sec. 2 a.] WITHOUT JUDICIAL PROCEEDINGS. 27 great bodily liami, or endanger human life. State v. Morgan, 3 Ired. 186. The preservation of human, life, and of limb and member from grievous harm, is of more importance to society than the protection of property. Compensation may be made for injuries to, or the destruction of, property; but for the deprivation of life there is no recompense; and for grievous bodily harm, at most but a poor equivalent. It is an inflexible principle of the criminal law of this state, and we believe of all the states, as it is of the common law, that for the pre- vention of a bare trespass upon property, not the dwelling house, human life cannot be taken, nor grievous bodily harm in- flicted. If in the defense of property, not the dwelling house, life is taken Avith a deadly weapon, it is murder, though the killing may be actually necessary to prevent the trespass. The character of the weapon fixes the degree of the offense. But if the killing is not with a deadly weapon — if it is with an in- strument suited rather for the purpose of alarm, or of chas- tisement, and there is no intent to kill, it is manslaughter, Carroll v. State, 23 Ala. 28 ; Harrison v. State, 24 id. 21 ; State V. Morgan, 3 Ired. 86 ; Commonwealth v. Drew, 4 Mass. 301 ; MeDaniel v. State, 8 Sm.-& Mar. 401; State v. Vance, 17 Iowa, 138; Whart. Horn. ss. 41-1—417. However true this may be of violence the owner directly in person inflicts, for a trespass, or in defense, or prevention of a trespass, committed in his presence, the argument now made by the counsel for appellant is that of the court in Ilott v. Wilkes, that for the prevention of secret trespasses, committed in the absence of the owner, he may employ means of defense and protection to which he could not resort if present, offering personal resistance. The in- structions requested place the proposition in its most imposing form, of protection against repeated acts of aggression com- mitted in the nighttime by unknown trespassers. For the pre- vention of such trespasses, he may, it is said, employ any agency or instrumentality adequate to the end, even though it involves of necessity, grievous bodily harm, or death to the trespasser. The proposition itself subordinates human life, and the preservation of the body in its organized state, to the protection of property. It subjects the man to loss of limb or member, or to the deprivation of life, for a mere trespass, capable of compensation in money. How else can the owner protect himself? it is asked. The answer may well be. he is not entitled to protection at the expense of the life, or limb or member of the trespasser. All that the latter forfeits by the wrong is the penalty the law pronounces. At common law, he would be compelled to (make) compensation, for particular trespasses, and of the nature, in one respect, the defendant in- tended to guard against — the severance from the freehold of its products — not only 'is he compelled to compensation, but un- der our statutes, indictable for a misdemeanor. It may well be asked, in return, if the owner has the right to visit on the 28 WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. trespasser a higher penalty than the law would visit? Has he a right to punish a mere trespass as the law will punish the most aggravated felonies, which not only shock the moral sense, evince an abandoned, malignant, depraved spirit, but offend the whole social organization? There are but few offenses the law suffers to be punished with death. "Whether this extreme penalty shall be visited the law submits to the discretion and to the mercy of the jury — they may consign the offender to im- prisonment for life in the penitentiary. There is no offense which is punished by the laceration of the body, or by loss of limb or member. Shall the owner, for the prevention of a trespass, inflict absolutely the penalty of death, a jury could not inflict, nor a court sanction? Inflict it without the oppor- tunity the jury has, when they may lawfully inflict it, of less- ening it in their mercy and discretion to imprisonment? Shall he, in protection of his property, lacerate the body, a punish- ment so revolting that it has long been excluded from our criminal code? If the owner is vexed by secret trespasses, and their repetition, his own vigilance must, within the limits of the law, flnd means of protection. Stronger enclosures, and a more constant watch must be resorted to, and a stricter en- forcement of the remedies the law provides will furnish ade- quate protection. If these fail, it is within legislative compe- tency to adopt remedies to the exigencies and necessities of the owner. It is said the spring gun, or like engine, is harmless, if of his own wrong the trespasser does not come in contact with it. Admit it, and the controlling, underlying consideration is not met. If it was conceded thereby he lost his right to recover compensation for the injury sustained, the state does not lose the right, nor is its duty lessened, to demand retribution for its broken laws, and the unlawful death or wounding of one of its citizens. With certainty the measure of protection to property is declared, and the force which may be employed in its defense is defined. The secrecy of the trespass, or the fre- quency of its repetition, does not enlarge the one or the other. Life must not be taken, nor grievous bodily harm inflicted. The trespasser is always in fault — it is his own wrong, which justifies force, to the extent it may be lawfully used, or to the extent it may be provoked and exerted. The secrecy and fre- quency of the trespass would not justify the owner in conceal- ing himself, and with a deadly weapon, taking the life, or grievously wounding the trespasser, as he crept stealthily to do the wrong intended. "What difference is there in his con- cealing his person, and weapon, and inflicting unlawful vio- lence, and contriving and setting a mute, concealed agency or instrumentality which will inflict the same, or it may be greater violence? In each case, the intention is the same, and it is to exceed the degree of force the law allows to be exerted. In the one case, if the trespasser came not with an unlawful in- Sec. 2 a.] without judicial proceedings. 29 tent — if his trespass was merely technical — if it was a child, a madman, an idiot, carelessly, thoughtlessly, entering and wan- dering on the premises, the owner would withhold all violence. Or he could exercise a discretion, and graduate his violence to the character of the trespass. The mechanical agency is sen- sitive only to the touch — it is without mercy, or discretion, its violence falls on whatever comes in contact with it. What- ever may not be done directly cannot be done by circuity or indirection. If an owner, by means of spring guns or other mischievous engines planted on his premises, capable of caus- ing death or of inflicting great bodily harm on ordinary tres- passers, does cause death, he is guilty of criminal homicide. "Whart. Cr. L. ss. 418, 553. The degree of the homicide depends on the facts already stated. If the engine is of the character of a deadly weapon, the killing is murder. It could not be employed without the intent to injure, and without indifference whether the injury would be death, or great bodily harm. But if not deadly in its character, if it is intended only for alarm, and for inflicting slight chastisement, or mere detention of the trespasser until he shall be freed from it, there may be no offense, or at most but manslaughter. The character of the instrument, and its probable capacity for injury, may repel all presumption to do more than merely alarm, or without inflicting any corporal harm, merely to detain the trespasser, and stay him in his ef- forts to wrong, and if death should ensue, it would be beyond the intention of the owner, and an unforeseen, and not a nat- ural or probable, consequence of an act in itself not unlawful. For it is lawful to frighten away the trespasser, or by detain- ing him and staying the wrong he contemplates, to involve him in disgrace ; to detect him, and to deter him from future tres- passes. If the instrument is adapted only to the purposes of punishment, and it should inflict a punishment from which death ensued, the offense is manslaughter, as it would have been if the owner in person had inflicted the violence. The instructions requested by the appellant were inconsistent with these views, and were properly refused. The instructions given by the city court are some of them based on the theory, that if death had ensued from the wound- ing of the prosecutor, by the spring gun, it would have been murder, it is a legal sequence, that the defendant is guilty of an assault with intent to murder. Others proceed on the the- ory that he is guilty of an assault with intent to murder, if the spring gun was set with the specific intent to kill the prosecutor, whom he suspected as the trespasser, and against whom he bore malice, although there was also a general intent to kill who- ever was the trespasser, coming in contact with it. We regard each class of instructions as erroneous. An error pervading the first is, that a general felonious intent is made the equivalent of the specific felonious intent, which we 30 WITHOUT JUDICLVL PROCEEDINGS. [Cll . 1. have said is the indispensable element of the oifense, with which the prisoner stands charged. A general felonious inten- tion, by implication of law, will convert the killing of a human being into murder, though his death or injury was not within the intention of the slayer. So, also, if there is the felonious intention to kill one, and the fatal blow falls on another, caus- ing death, it is murder. The act is referred to the felonious intent existing in the mind of the actor, and by implication of law supplies the place of malice to the person slain. Whart. Hom. s. 183 ; 4 Black. 261 ; Bratton v. State, 10 Humph. 103. The doctrine of an intent implied by law, different from the intent in fact, can have no application to the offenses the stat- ute punishes. It is excluded by the terms of the statute which include only direct assaults on the person of the party it is averred there was the intent to murder. If in fact there was not the intent to murder him, whether there was a general felo- nious intent, or an intent to do harm to some other individual, is not important — there can be no conviction of the aggravated offense. Morgan v. State, 13 Sm. & Mar. 242; Jones v. State, 11 id. 315 ; Norman v. State, 24 Miss. 54. An assault is defined as an intentional attempt, by violence, to do a corporal injury to another. In Johnson v. State, 35 Ala. 363, it is defined as "an attempt or offer, to do another personal violence, without actually accomplishing it. A men- ace is not an assault, neither is a conditional offer of violence. There must be a present intention to strike." In Lawson v. State, 30 Ala. 14, it is said: "To constitute an assault there must be the commencement of an act, which if not prevented, would produce a battery;" the drawing of a pistol, without cocking or presenting it, is not an assault. In State v. Davis, 1 Ired. 125, it is said by Gaston, J.; "It is difficult in prac- tice to draw the precise line which separates violence menaced. . from violence begun to be executed, for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by an act, which if not stopped or diverted, will be followed by per- sonal injury, the execution of the purpose is then begun, and the battery is attempted." Constructive assaults are not within the statute. The ulterior offense ; the principal felony intended, and the intent to accomplish which is the aggravating quality of the offense, consists in actual violence and wrong done to the person. The assault must, therefore, consist of an act be- gun, which if not stopped or diverted, will result, or may result in the ulterior offense, and the act when begun must be directed against the person who is to be injured. Evans v. State, 1 Humph. 394; State v. Preels, 3 id. 228. It must also be an act which, when begun, the person against whom it is directed has the right to resist by force. "2 Arch. Cr. PI. 224, 2 note. The setting a spring gun on his premises, by the owner, is culpable only because of the intent with which it is done. Un- Sec. 2 a.] without judicial proceedings. 31 less the public safety is therebj^ endangered, it is not indictable. State V. Moore, 31 Conn. 479. If dangerous to the public, it is indictable as a nuisance. Resistance by force to the setting of it, by any individual (if not dangerous to the public), the law would not sanction, though he may apprehend injury to him is intended if he trespass on the premises. The injury exists only in menace^ — it is conditional, and his own act must intervene and put in motion the force from -which injury will proceed. While, because of the unlawful intention with which the gun is set the owner is made criminally liable for the consequences he contemj>lates, it is not his violence, except by implication of law. which produces the injury. It is not, consequently, an assault which, connected with an intent to murder, is punish- able under the statute. If the gun is set with intent to kill a ])articular person, who is injured by it, whether it is not an attempt to murder committed by means not amounting to an assault, indictable under another clause of the statute, is a question this record does not present. The result is that the judgment of the city court is reversed and the cause remanded. The prisoner will remain in custody until discharged by due course of law. The decision in Ilott v. Wilkes, 3 B. & Aid. 304, referred to in this opinion, produced a controversy between Sidney Smith and Best, J., to be found in Smith's Miscellanies, vol. 1, p. 347, and vol, 2, p. 136. For further discussion as to civil and criminal liability for setting spring guns, see Blsh. Non-Cont. Law, ss. 847, 943; Loomis v. Terry. 17 Wend. 496, and note; State v. Barr, 11 Wash. 481, 39 Pac. 1080, 29 L. R. A. 154, and note; Bish. Cr. Law, ss. 854-857; Clark's Cr. Law, 174; McClain's Cr. Law, ss. 142, 325, 1184; State v. Marfaudille, 92 Pac. 939, 14 L. R. A. (N. S.) 346, and note. See "Homicide," Century Dig. §§ 112, 187, 188; Decennial and Am, Dig. Key No. Series, §§ 86, 124. CONWAY V. GRANT, 88 Ga. 40, 14 L. R. A. 196, 13 S. E. 803. 1891. Defense of Property. Guard Dogs. [Action by Conway to recover damages for injuries received from being bitten by defendant's dogs. Judgment for defendant, dismissing the action. Conway carried the case to the supreme court by writ of error. Reversed. Conway went into the back yard of defendant to seek work as a carpenter, and was bitten by defendant's dogs.] Bleckley, C. J. The ferocious cliaracter of the dogs and the, knowledge of the owner are sufficiently alleged. The only matter of controversy is touching the fault of the plaintiff in exposing himself to attack by entering the premises of the de- fendant where the dogs were kept. There was an open gate in rear of the premises, and the plaintiff, according to his declara- tion, was on lawful business. Being in search of employment as a carpenter, and seeing indications that such work was prob- 32 WITHOUT JUDICIAL PROCEEDINGS. [Cll. 1. ably carried on in a certain house, he entered the premises for the purpose of making engagement or to work, having no notice or knowledge of the dogs. In this way he became exposed and was bitten. We think a cause of action is substantially set forth. Code, § 2964, declares: "A person who owns or keeps a vicious or dangerous animal of any kind, and, by the care- less management of the same, or by allowing the same to go at liberty, another, without fault on his part, is injured thereby, such owner or keeper shall be liable in damages for such in- jury." The fault here referred to is not that of being a tres- passer, but that of being in some way instrumental in provok- ing or bringing on the attack complained of. "It must^ at the same time, be understood that the right of redress of the injured person will be defeated if the injury was caused by his own fault. A person who irritates an animal, and is bitten or kicked in turn, is deemed in law to have consented to the dam- age sustained, and cannot recover. But if the fault of the in- jured party had no necessary or natural and usual connection with the injury, operating to produce the injury as cause pro- duces effect, the owner of the animal will be liable. For exam- ple, the defendant keeps upon his premises a ferocious dog, and the plaintiff, having no notice that such dog is there, tres- passes in the daytime upon the premises, and the dog rushes upon him and bites him. The defendant is liable, since it is not the necessary or natural and usual consequence of a person's trespassing upon a man's premises by day that he should be attacked by a savage dog." Bigelow, Torts, pp. 249, 2.50. Though the gate was open, and the plaintiff was ^n lawful business, it may be that he had no strict legal right to enter the premises from the rear. But this would be no justification for leaving dangerous dogs loose on the premises to bite him or others that might so intrude. Such dangerous means of defense against mere trespassers the law will not eoimtenance. As general authorities on the subject, see Brock v. Copeland, 1 Esp. 203; Sarch v. Blackburn, 4 Car. & P. 297; Curtis v. Mills, 5 Car. & P. 489 ; Loomis v. Terry, 17 Wend. 496 ; Pier- ret V. MoUer, 3 E. D. Smith, 574; Kelly v. Tilton, *42 N. Y. 263; Sherfey v. Bartley, 4 Sneed. 58; Woolf v. Chalker, 31 Conn. 121 ; Laverone v. Mangiante, 41 Cal. 138 ; notes to Knowles V. Mulder (Mich.), 41 N. W. Rep. 896; Cooley, Torts, *345; Bish. Non-Cont. Law, 1235 et seq.; 1 Thomp. Neg. p. 220 § 34; Muller v. McKesson, 73 N. Y. 195; Rider v. Whit«. 65 N. Y. 54. It will be observed that the most that could possibly be said against the plaintiff is that he trespassed by going upon the premises. This is a milder fault than going there to com- mit a trespass. If his purpose had been to commit a crime, the dogs would have been properly employed in resisting him. But he seems to have had a virtuous and worthy object, although his mode of executing it was doubtless injudicious. It was Sec. 2 a.] without judjcial proceedings. 33 not lawful to bite him by the instnimentality of dogs or other dangerous animals. The court erred in dismissing the action. Judgment reversed. See the notes to this case in 14 L. R. A. 196. See "Animals," Cen- tury Dig. § 236; Decennial and Am. Dig. Key No. Series, § 70. BROCK V. COPELAND, 1 Espinasse, 203. 1794. Defense of Property. Chiard Dogs. [Action on the case for damages caused by defendant's dog. Judg- ment for defendant nonsuiting plaintiff. The declaration stated that defendant knowingly kept a dog used to bite and that plaintiff was Injured by the dog. Not guilty pleaded.] It was given in evidence that the defendant was a carpenter, and that the dog was kept for the protection of his yard; that he was kept tied up all day, and was at that time very quiet and gentle, but was let loose at night. It was further proved that the plaintiff, who was foreman to the defendant, had gone into the yard after it had been shut tip for the night, and the dog let out; at which time the injury happened, the dog hav- ing then bit and torn him. On this evidence Lord Kenyon ruled, that the action would not lie. He said that every man had a right to keep a dog for the protection of his yard or house; that the injury which this action was calculated to redress, was where an animal known to be mischievous was permitted to go at large, and the injury therefore arose from the fault of the owner in not securing such animal, so as not to endanger or injure the public ; that here the dog had been properly let loose; and the injury had arisen from the plaintiff's own fault, in incautiously going into defendant's yard after it had been shut up. His Lordship added, that in a former case, where in an action against a man for keeping a mischievous bull, that had hurt the plaintiff, it having appeared in evidence that the plaintiff was cross- ing a field of the defendant's where the bull was kept, and where he had received the injury, the defendant's counsel con- tended, that the plaintiff having gone there of his o-\vn head, and having received the injury of his own fault, that an action would not lie: but that it appearing also in evidence that there Avas a contest concerning a right of way over this field wherein the bull was kept, and that the defendant had permitted sev- eral persons to go over it as an open way. that he had ruled in that ease, and the court of King's Bench had concurred in opinion with him: That the plaintiff having gone into the field, supposing that he had a right to go there, and the defend- ant having permitted persons to go there, as over a legal way, that he should not then be allowed to set up in his defense the Remedies — 3. 34 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. right of keeping such an animal there as in his close; but that the action was maintainable. See "Animals," Century Dig. §§ 225, 226, 233-236; Decennial and Am. Dig. Key No. Series, §§ 68, 70. STATE V. STEELE, 106 N. C 766, 782-787, 11 S. E. 478. 1890. Defense of Person and Property. Evicting Persons from Hotels, etc., by Force. [Criminal prosecution begun in a justice's court of Buncombe county and carried by appeal to the criminal court of Buncombe county, where there was a verdict and judgment against the defendant. Defendant appealed to the supreme court. Reversed. Joseph "Weaver, the prosecutor, ha,d been notified, in writing, by de- fendant, not to go upon the premises of the Battery Park Hotel; but, notwithstanding such notice. Weaver did go upon the porch of the hotel and was directed by defendant to leave. As he was leaving, de- fendant pushed him off the porch. Defendant was manager of the hotel. Weaver was on the porch contrary to the rules of the hotel, which required persons representing livery-men — and such was Wea- ver's business on this occasion — to keep off the porch,, and to transact their business with the guests of the hotel through servants of the hotel stationed at a designated part of the premises for that purpose. There was evidence tending to prove that the prosecutor was discrim- inated against in the enforcement of the rules of the hotel. The de- fendant's third exception was as follows: 3. That the court erred in the following Instructions given to the jury: "If you shall find from the evidence that others engaged in the same business as the prose- cutor were permitted by the defendant to go to the Battery Park Hotel for the same purpose for which the prosecutor went there — that is, to secure and transact business for his employer's livery-stable — then the prosecutor had also the right to go there for that purpose at rea- sonable times, and to remain there a reasonable length of time tor the transaction of such business;, and it would not matter that the rules of the hotel forbade his entering the premises of the hotel for that purpose, or that he had beeu previously forbidden, in writing, to come upon the premises of the hotel." Only so much of the opinion is here inserted as discusses the rights and liabilities of hotel proprietors, and others having property used for similar purposes, with regard to defending their property from trespassers and others.] Avery, J. . . . Upon a review of all the authorities ac- cessible to us, and upon the application of well-established prin- ciples of law to the admitted facts of this particular case, we are constrained to conclude that there was error in the charge given by the court to the jury, because : 1. Guests of an hotel, and travelers or other persons entering it with the bona fide intent of becoming guests, cannot be lawfully prevented from going in or put out by force, after entrance, provided they are able to pay the charges and tender the money necessary for that purpose, if requested by the landlord, unless they be persons of bad or suspicious character, or of vulgar hab- its, or so ol)jectionable to the patrons of the house, on account of Sec. 2 a.] WITHOUT JUDICIArj PROCEEDINGS. 35 the race to which they belong, that it would injure the business to admit them to all portions of the house, or unless they attempt to tal^e advantage of the freedom of the hotel to injure the land- lord's chances of profit derived either from his inn or any other business incidental to or connected with its management, and constituting a part of the provision for the wants or pleasure of his patrons. Jencks v. Coleman, supra ; Com. v. Mitchell, supra ; Com. V. Power, supra; Pinkerton v. Woodward, 91 Amer. Dec. 660; Barney v. Steamboat Co., supra; 1 Whart. Crim. Law, § 621; Ang." Carr. §? 525, 529. 530; Britton v. Railroad Co., 88 N. C. 536. 2. When persons unobjectionable on account of character or race enter an hotel, not as guests, but intent on pleasure or profit, to be derived from intercourse with its inmates, they are there, not of right, but under an implied license that the landlord may i-evoke at any time; because, barring the limitation imposed by holding out inducements to the public to seek accommodation at his inn, the proprietor occupies it as his dwelling house, from which he may expel all who have not acquired rights, growing out of the relation of guest, and must drive out all who, by their bad conduct, create a nuisance and prove an annoyance to his patrons. Harris v. Stevens, 31 Vt. 79 ; 1 Whart. Crim. Law, § 625. 3. The regulation, if made by any innkeeper, that the proprie- tors of livery stables, and their agents or servants, shall not be allowed to enter his hotel for the purpose of soliciting patronage for their business from his guests, is a reasonable one, and, after notice to desist, a person violating it may be lawfully expelled from his house, if excessive force be not used in ejecting him. Com. V. Power, supra ; Harris v. Stevens, supra. See, also, Gris- wold V. Webb, recently reported in 19 Atl. Rep. 143 (a Rhode Island ease) ; Railroad Co. v. Tripp, supra. 4. An innkeeper has unquestionably the right to establish a news-stand or a barbershop in his hotel, and to exclude persons who come for the purpose of vending newspapers or books, or of soliciting employment as barbers; and, in order to render his business more lucrative, he may establish a laundry or a livery stable in connection with his hotel , or contract with the proprie- tor of a livery stable in the vicinity to secure for the latter, as far as he legitimately can, the patronage of his guests in ihat line for a per centum of the proceeds or profits derived by such owner of vehicles and horses from dealing with the patrons of the pub- lic house. After concluding such a contract, the innkeeper may make, and after personal notice to violators, enforce, a rule ex- cluding from his hotel the agents and representatives of other livery stables who enter to solicit the patronage of his guests ; and where one has persisted in visiting the hotel for that purpose, after notice to desist, the proprietor may use sufficient force to expel him if he refuse to leave when requested, and may eject him, even though on a particular occasion he may have entered 36 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. for a lawful purpose, if he does not disclose his true intent when requested to leave, or whatever may have been his purpose in ' entering, if he in fact has engaged in soliciting the patronage of the guests. Barney v. Steamboat Co., supra; Jencks v. Cole- man, and Harris v. Stevens, supra; Ang. & A. Corp. § 530. 5. The broad rule laid down by Wharton ( 1 Crim. Law, § 625 ) is that "the proprietor of a public inn has a right to request a person who visits it, not as a guest or on business with a guest, to depart, and if he refuse the innkeeper has a right to lay his hands gently upon him, and lead him out, and, if resistance be made, to employ sufficient force to put him out ; and for so doing he can justify his conduct on a prosecution for assault and bat- tery." It will be observed that the author adopts in part the language already quoted from the courts of Pennsylvania. 6. If it be conceded that the prosecutor went into the hotel at the request of a guest, and for the purpose of conferring with the latter on business, still, in a.ny view of the case, if, after entering, he engaged in "drumming" for his employer when he had been previously notified to desist in obedience to a regnilation of the house, the defendant had a right to expel him if he did not use more force than was necessary; and if the prosecutor, having entered to see a guest, did not then solicit business from the pa- trons of the hotel, but had done so previously, the defendant, see- ing him there, had a right to use sufficient force to eject him, un- less he explained, when requested to leave, what his real intent was. Harris v. Stevens, and Com. v. Power, supra. The guest, by sending for a hackman. could not delegate to him the right to do an act for which even the guest himself might lawfully be put out of the hotel. 7. If we go further, and admit, for the sal?e of argument, that the principle declared in IMarkham v. Brown, 8 N. H. 530, and relied on to sustain the view of the court below, is not inconsistent with the law on the same subject, as we find it laid down by Wharton and other recognized authorities, still our case will be found to fall under the exception to the general rule stated in express terms in that case. The court said* "If one comes to injure his [the innkeeper's] house, or if his business operates di- rectly as an injury, that may alter the case ; but that has not been alleged here; and perhaps there may be cases in which he may have a right to exclude all but travelers and those who have been sent for by them. It is not necessary' to settle that at this time. " There was no evidence in Markham v. Brown that the proprietor of the hotel had any contract with another stage line, or would suffer pecuniary loss or injury, if the agent who was expelled was successful in his solicitations ; and it seems that Angell and others, who cite as authority that ease, as well as Jencks v. Coleman and Barney v. Steamboat Co.. reconcile them by drawing the distinc- tion that in the latter cases, and in the hypothetical case of an innkeeper, put by Justice Story, the person whose expiilsion was justified was doing an injury to the proprietor, who had him re- Sec. 2 a.] without judicial proceedings. 37 moved, by diminishing his profits derived legitimately from a business used as an adjunct to that of common carrier or inn- keeper. In using the language quoted above, Justice Parker seems to have had in his mind, without referring to it, the opinion of Justice Story, delivered in the circuit court but two years be- fore ( Jencks V. Coleman, supra). 8. The defendant, as manager of the hotel, could make a valid contract, for a valuable consideration, with Sevier, to give him the exclusive privilege of remaining in the house and soliciting patronage from the guests in any business that grew out of pro- viding for the comfort or pleasure of the patrons of the house. The proprietors of the public house might legitimately share in the profits of any such incidental business, as furnishing car- riages, buggies, or horses to the patrons, and for that purpose had as full right to close their house against one who attempted to in- .iure the business in which they had such interest as the owner of a private house would have had, and this view of the case is con- sistent with the doctrine enunciated in Markham v. Brown. There was no evidence tending to show that Chambers had actual permission from the proprietors to approach the inmates of the hotel on the subject of patronizing him, nor that they had actual knowledge of the fact that he had continued his solicitations after receiving a similar notice to that sent to the prosecutor. The fact that he was overlooked or passively allowed to remain in the hotel (it may be under the impression on the part of the defendant that he had desisted from his objectionable practices) cannot, in any view of the law, work a forfeiture of the right to enforce a rea- sonable regulation, made to" protect their legitimate business from injury. If, therefore, a permit on the part of the defendant to Chambers to "drum" gratuitously in the house would at once have opened his doors to all of the competitors of the latter (a proposition that we are not prepared to admit) , the defendant did not, so far as the testimony discloses the facts, speak to him on the subject; and the soundness of the doctrine that, without interfer- ing with the legal rights of the guests, the proprietor of a hotel is prohibited by the organic law from granting such exclusive privi- leges to any individual, as to the use or occupancy of his prem- ises, as any other owner of land maj' extend, is not drawn in ques- tion. We therefore sustain the second and third assignments of error. His honor erred, for the reasons given, in instructing the jury that the guilt of the defendant depended upon the question whether he permitted Chambers or Sevier to solicit custom in the house. He had a lawful right to discriminate, for a considera- tion, in favor of Sevier, while it does not appear from the evidence that he granted any exclusive privileges to Chambers. We hold that the regulation was such a one as an innkeeper had the power to make, and must not be understood as approving the idea that the sanction of the municipal authorities could impart validity to it, if it were not reasonable in itself, and within the powers which the law gives to proprietors of public houses in order that they 38 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. may guard their own rights and protect their patrons from an- noyance. For the reasons given the defendant is entitled to a new trial. See note to Rex v. Cheshunt, 1 B. & A. 473, inserted post in this sec- tion. See "Assault and Battery," Century Dig. § 100; Decennial and Am. Dig. Key No. Series, § 69, and "Innkeepers," Century Dig. § 9; Decennial and Am. Dig. Key No. Series, § 6. STATE V. DAVIS, 80 N. C. 351. 1879. Defense of Person and Property. Trespasser in Public Road. [Indictment for an affray against Davis and Lassiter. Lassiter was acquitted. Verdict and judgment against Davis, who appealed. Af- firmed. The facts appear in the beginning of the opinion.] Ashe, J. The defendant and one Evans were quarrelling near the dwelling house of Mrs. Laws in a public road running over her land. The defendant, armed with a pistol which he had in his hand, was vaporing, cursing, and using very vulgar language in the hearing of the inmates of the house. Lassiter, who was the son of Mrs. Laws and lived with her, came out with an ordinary walking stick in his hand and remonstrated with the defendant, who, still holding his pistol, cursed and denounced him, saying he was in the public road, and he would curse as much as he pleased. After the interchange of a few words, the lie was given by defendant, and Lassiter struck him with his stick, when the de- fendant attempted to use his pistol, but was prevented by those present. He seems to have rested his defense upon the ground that he was in the public road and had the right to do there as he j)leased. In this he was mistaken. The public have only an easement in a highway — that is, the right of passing and repassing along it. The soil remains in the owner, and where one stops in the road and conducts himself as the defendant is charged to have done, he becomes a trespasser, and the owner has the right to abate the nuisance which he is creating. The principle of molliter manus does not apply in a case like this, where the trespasser armed with a pistol is acting in such belligerent defiance. See State v. Buck- ner, 61 N. C. 431. The defendant used language which was calculated and in- tended to bring on a fight, and a fight ensued. He is guilty. State V. Perry, 50 N. C. 9; State v. Bobbins, 78 N. C. 431. No error. See "Affray," Century Dig. §§ 1-5; Decennial and Am. Dig. Key No. Series, §§ 1, 2; "Assault and Battery," Century Dig. § 90; Decennial and Am. Dig. Key No. Series, § 64. Sec. 2 a.] without judicial pki.ickedings. 39 STATE V, GOODE, 130 N. C. 651, 41 S. E. 3. 1902. "A Man's House is His Castle." The Force That May Be Used to Pro- tect It. Furniture Sold on Installment Plan. [Indictment against Lucinda Goode for an assault and battery upon the prosecutor (whose name does not appear in the report of the case). Verdict and judgment against the defendant, who appealed. Reversed. The prosecutor went to the defendant's house to collect some money due on furniture which had been sold to her husband on the installment plan. The other facts are stated in the opening of the opinion.] Clark, J. "Whether there was excessive force used or not was a question for the jury, not for the court. The defendant 's testi- mony was fuller than that of the prosecutor, but was not contra- dicted by him ; and taking it to be true, as his honor assumed, and as must be done on the virtual demurrer to her evidence, these are the facts : Two strangers, one of them a white man, came to the defendant's home. She invites the latter in politely, and gives him her rocking chair. Without showing any credentials, he de- mands pay for her bedstead. Upon her saying she had no money, and asking him to wait till her husband came, the prosecu- tor jumps up violently, and, swearing he would take the bedstead, or go to hell trying, he throws her tablecloth and underskirt on the floor. She tells him to let her things alone. As she was iron- ing, presumably those things were freshly washed, and nicely starched and ironed, and he must have Imown that to throw them on the floor would arouse her ire. Then he laid his profane hands on the paraphernalia of her bed, and began to throw back the bedclothes and to lift the mattress, all of which would speedily have gone, of course, upon the floor. The defendant would not have been a woman if she had stood that. She seized her little boy 's baseball bat, and told him to let her things alone and leave the house, when he squared off at her, drawing back his fist, and called her a ' ' damned fool, ' ' whereupon, very naturally, she bat- ted the back of his head. It was probably a "left fielder," for the prosecutor soon after left that field. The counsel for the prosecutor tells us he left because he did not wish to provoke a difficulty. Itis doubtful if he could do more to provoke a woman, which is sometimes worse, and it would seem that he left rather than to collect another installment on the batting. The woman was in her own house. If her evidence is true, — and it must be so taken on this appeal, — she treated the prosecutor politely, and he returned her politeness by swearing, throwing her things on the floor, throwing back the bedclothes and mattress and avowing his intention to carry off her bedstead, at the direst hazard to his soul, and drawing back his fist at her and cursing her when again told to desist. It cannot be said, as a matter of law, with two men against her, and in her own house, she used excessive force in protecting her person, her home and her property. In view of his violent conduct and language, and refusal to behave or to leave, could she have secured her rights in her own home or his 40 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. departure by the use of less force ? Could she, with safety to her person, have laid hands on him more gently? If, on another trial, the evidence being the same, it shall be held that this was excessive force, a jury must so declare it. This court cannot. Sir Edward Coke (3 Inst. 162) says : "A man's house is his castle, et domus sua cuique tutissimum refugium, ' ' which last is a little quotation by him from the famous Corpus Juris Civilis of Jus- tinian, and is to be found in the Pandects (lib. 2, tit. 4, "De in Jus Vocando " ) . And another great lawyer and statesman, whose name is borne with honor by two of our counties, — William Pitt, earl of Chatham, — used this ever-memorable expression: "The poorest man, may, in his cottage, bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may enter, but the king of England cannot enter. All his forces dare not pass the threshold of the ruined tenement." This home was a humble one. The bedstead on which defendant slept may not have been fully paid for. But the prosecutor had no right to enter that home and misbehave, or refuse to leave when ordered out, — ^still less, to carry off any property therefrom unless he had been an officer with a legal precept so to do; and the occupant of that home had the right to use sufficient force to make him leave, and to abandon his attempt to carry off the bedstead, and to stop his handling of the other property ; in short, to make him ' ' leave her things alone," as the defendant repeatedly told him to do. Whether the force used by the defendant was excessive is matter for a jury, but, if this evidence is to be believed, the prosecutor was a lawbreaker, and is himself in jeopardy of the judgment for his violence and his defiant disregard of the rights of the defend- ant. Suppose this defendant had been white, and the prosecutor a negro man. The law is impartial, and extends the same protec- tion to all alike. Error. While it is to be hoped that the judges, lawmakers, and orators will ever hear In mind the eloquence of the Earl of Chatham, it is well — iii order to be on the sate side^-that the private individual bear in mind the sententious utterance of the immortal and practical Mr. Grummer: "No room's private to his majesty when the street door is once passed. That's law. Some people maintains that an Englishman's house is his castle. That's gajnmon." The truth lies between the eloquent Earl and the practical constable. A man's house may be broken into — whether the outer door be closed or not — for the purpose of serving criminal process, Cooley's Const. Lim. p. 429; Bish. New Crim. Proc. (a most admirably prepared book), sees. 194-209; and even in civil cases, in North Carolina, if the civil process be a flat in claim and de- livery proceedings. But, ordinarily, his dwelling house cannot be broken into for the purpose of serving civil proeessi though, if the outer door be open, inner doors may be broken to serve such process. Hence, a man's house is a city of refuge against creditors, but not for criminals against criminal process. Neither is it a "fence" for Ill- gotten chattels in North Carolina. That is, if "building," in the stat- ute, shall be held to include "dwelling house." See Revisal, sec. 798i- See McLeod v. Jones, 105 Mass. 403, inserted at sec. 2, post, and note. It has been held by some courts that the vendor of chattels under a Sec. 2 a.] without judicial proceedings. 41 conditional sale, by the terms of wliich such a right is stipulated for, may enter and forcibly seize the subject-matter of the contract, without thereby subjecting himself to an action of trespass; provided he use no unnecessary force. There is a conflict of authority on this point. See 19 L. R. A. (N. S.) 607, and note. See "Assault and Battery," Century Dig. §§ 99-101, 141; Decennial and Am. Dig. Key No. Series, §§ 69, 95. GREEN V. GODDARD, 2 Salkeld, 641. 1706. Defense of Person and Property. Molliter Manus. Trespass, assault and battery laid on the first of October, 3 Reg. The defendant as to the vi et armis pleaded Non cul. And as to the residue says, that long before, viz. on the 13th of September, a stranger's bull had broke into his close, that he was driving him out to put him in the pound, and the plaintiff came into the said close, et manu forti impedivit ipsum ae taurum praed. reseussisse voluit, et quod ad praeveniend, &c. ipse idem defend, parvum flagellum super querentem molliter imposuit, quod est idem resi- dum, &c. absque hoc quod cul. fuit ad aliquod tempus ante eundem 13 diem. The plaintifiE demurred. Mr, Eyre for the plaintiff argued, that they should have requested him to go out of the close. 19 H. 6, 31. 11 H. 6, 23. 2 Ro. Tresp. 547, .548, 549, and that flagellum molliter imponere is repugnant. 1 Sid. 4. Lastly, the traverse is short, and no answer to the time after. 1 Leon. 307. 3 Cro. 87. 1 Ro. Rep. 406. Et Per Curiam, there is force in law, as in every trespass quare clausum fregit : As if one enters into my ground, in that case the owner must request him to depart before he can lay hands on him to turn him out ; for eveiy impositio manuum is an assault and battery which cannot be justified upon the account of breaking the close in law, without a request. The other is an actual force, as in burglary, as break- ing open a door or gate ; and in that case it is lawful to oppose force to force; and if one breaks down the gate, or comes into my close vi et armis, I need not request him to be gone, but may lay hands on him immediately, for it is but returning violence with violence : So if one comes forcibly and takes away my goods, I may oppose him without more ado, for there is no time to make a request. 2dly. Powell, J., held, that the attempt to take and rescue the bull was an assault on his person and a taking from his person ; for if H. is driving cattle on the highway, and one comes and takes them from him, it is robbery, which cannot be without a taking from his person; quod non fuit negatum. "Vide 29 H. 66. 2 Ro. 549. Placito 11. 1 Ro. Rep. 19. See "Assault and Battery," Century Dig. § 15; Decennial and Am. Dig. Key No. Series, § 15. 42 WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. STATE V. TAYLOR, 82 N. C. 554, 1880. Defense of Dwelling. Molliter Manus. [Indictment of Taylor and Lassiter for an affray. Verdict and judg- ment against both. Taylor alone appealed. Reversed. The facts ap- pear in the opinion.] Ashe, J. The alleged affray occurred in the house of the de- fendant, and only three witnesses were examined, two for the state and one for defendant. The court charged the jury that if they believed the testimony of any of the witnesses on behalf of the state or defendant, both defendants were guilty; that according to the testimony of any ■>vitness examined both defendants were guilty. And after the case was submitted to the jury with this charge, they came into court and asked his honor to instruct them as to the amount of force that might be lawfully used by the defendant Taylor, in order to expel the other defendant from his house. The court told the jury that the question did not arise from the testimony, and that it was not made necessary or proper by the testimony of any witness who had been examined for the coitrt to instruct them upon this point. To this ruling of his honor the defendant ex- cepted. If then there -ivas any one witness examined who testified to a state of facts, taken by itself, from which it might reeisonably be inferred that the purpose of Taylor in advancing on Williams, the other defendant, with the whip-staff, was to remove Mm from Ms house, that question should have been left to the jury, and then the further question would necessarily arise as to the amount of force the defendant might use to accomplish his purpose. How then stands the case? [FACTS.] One witness, Bryan Smith, testified that the first he saw was Williams at the door of Taylor's house "cutting or reaching into the door, and Taylor came out striking at Williams with a whip-staff, while Williams was cutting at Taylor with a razor; that Williams walked backwards cutting with his razor some ten or fifteen feet from Taylor's door, and Taylor continued to advance vipon him, with his whip-staff. ' ' When a trespasser or unwelcome visitor invades the premises of another, the latter has the right to remove him, and the law re- quires that he should first request him to leave, and if he does not do so, that he should lay his hands gently upon him, and if he re- sists he may use sufficient force to remove him, taking care how- ever to use no more force than is necessary to accomplish that ob- ject. But if the intruder defiantly stands Ms ground armed' ivitli a deadly weapon, the doctrine of molliter manus does not apply, and the owner may at once resort to physical force ; and it is a question for the jury whether he used more force than was neces- sary. State V. Davis. 80 N. C. 351. As Williams was at the door of defendant's house, reaching in iSec. 2 a.] without judicial proceedings. 43 the door and cutting with a razor and the defendant was striking at him with a staff, we think the jury might have been warranted in coming to the conclusion that it was the purpose of defendant to expel him from his house as he had the right to do ; and then it would have been a material inquiry for the jury whether the de- fendant had used more force than was necessary. In this view of the case it was proper for the jury to ask the court for instruc- tions as to the amount of force that might lawfully be used by the defendant, Taylor, in order to expel Williams from his house, and we are of the opinion it was the duty of the court to give the instructions, and in its failure to do so there was error. . . . In such cases "the true questions are: (1) Whether the party justi- fying had a good reason for using force; and, if so, (2) Whether such force was appropriate in kind and suitable in degree to accom.plish the purpose. . . As the kind and degree of force proper to re- move a trespasser, must depend upon the conduct of the trespasser in each particular case, the question whether it was suitable and mod- erate in any particular case, is a question of fact to be left to the jury." Commonwealth v. Clark, 2 Metcalf (Mass.), at p. 25. See 22 L. R. A. (N. S.) 724, and note. See "Assault and Battery," Century Dig. § 100; Decennial and Am. Dig. Key No. Series, § 69. HAMLIN V. MACK, 33 Mich. 103, 105. 1875. Defense of Property from Trespassing Animals. Distress. [Action, based upon a statute, for damages, and for the penalty im- posed for the rescue of any beast distrained for any cause. Verdict and judgment against the plaintiff, and he appealed. Reversed. The declaration alleged that Hamlin seized a heifer doing damage in his field; that Mack rescued her; that plaintiff was damaged by the rescue. The case being on trial before a jury, the judge intimated that the plaintiff could not recover unless he showed a regular impounding under the statute and strict adherence to the requirements of the stat- ute. Thereupon plaintiff's counsel proposed to shorten the trial by stating, in the form of an offer of proof, the precise facts he proposed to prove. This course being assented to by defendant's counsel, the plain- tiff's counsel made offer to prove (in substance) that in November, 1873, plaintiff took up the heifer while damage feasant on his land, and, because there was no public pound, confined it in his barn and cared for it properly until February thereafter, when "the defendant took the heifer from plaintiff's possession without his consent." He further offered to show various acts of notification to certain persons supposed to be owners of the heifer, and that plaintiff had filed a no- tice with the town clerk to the effect that he had taken up the heifer; and that he had published a notice in a newspaper to like effect. On objection by defendant's counsel, the court rejected this offer of proof and directed the jury to find for the defendant, which they did. There was no proof or offer to prove that "defendant used any threats or violence when he took the heifer from the plaintiff. The plaintiff's offer of proof showed that he had not fully complied with the require- ments of the statute regulating the distraining of animals. Neverthe- less his counsel insisted that the defendant was liable for rescue, not- withstanding such irregularities on the part of the plaintiff. He also Insisted that the facts he offered to prove established a lawful distress and impounding T}y plaintiff and an unlawful rescue by defendant.] 44: WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. Geaves, Ch. J. . . . The learned counsel for the defend- ant contends that the remedy sought by the plaintiff is purely statutory and derogatory to the common law rights of property owners and should be construed strictly, and that a compliance with all material provisions of the statute ought to be insisted on ; that under ch. 214, C. L., the party trespassed upon by cattle has an election of remedies, and may sue in trespass, or distrain and impound, and that in case he distrains and impounds, the distress can only be rendered lawful by strict compliance with the statu- tory requirements. And that a rescue involves a forcible taking back of the beast when lawfully impounded, and requires some- thing more than a mere taking without leave ; that there must be violent acts or menacing or threatening words. The right of distress damage feasant existed at common law and was not introduced by statute. 1 Inst. 142a, 161a. It sprang from a felt necessity for a summary and direct rem- edy against the beasts committing damage, and also for some guard against possible incentives to do hurt to them or put them out of the way. The owner might not be discoverable, or be in a situation to be reached by process, or, if discovered and within reach of process, there might be impediments to any redress by an ordinary action. And if the beasts could not be held, the injured party might be moved to misuse them or put them in a way to be lost to the owner. The right itself, with several incidents, being established at common law, acts were passed in England to regu- late its exercise, and the same course has been taken here. It is scarcely correct, therefore, to speak of the remedy by dis- tress damage feasant as something merely statutory and in dero- gation of the common law rights of property. The right being admitted, it was needful to frame guards, not only against vtTongs likely to be done under color of it, but also against violations likely to be committed against the right itself, under color of the very guards intended merely to prevent its being resorted to as a cloak for wrong. As a safeguard in certain cases against the carrying on of pro- ceedings in the assumed exercise or furtherance of the right of distress, the law admitted the right of rescue, but as this latter right was subject to be perverted and made an instrument to thwart the right of distress in cases when it was considered it ought not to be interfered with, and also subject to be resorted to in such manner and on such occasions as to give rise to unseemly wrangles and collisions, it was at length settled that generally, in case of an asserted distress, the regularity of the proceedings should not be left to the_ judgment or caprice of the party, but should be triable exclusively in a court of law, and in a specific proceeding, to be instituted by the party claiming the distrained beasts. Our law now in question is framed on this principle. The offer of the plaintiff embraced facts to show a lawful dis- tress damage feasant; There was no township pound, and the Sec. 2 a.] without judicial proceedings. 45 plaintiff personally took the beast when trespassing on his land, and confined it in his barn there. Before this act the beast in contemplation of law was in the owner's possession, but the seiz- ure of it damage feasant, and immediate confinement of it by the plaintiff in his barn there, took it out of the owner's possession and into the plaintiff 's custody, and this was enough to constitute a distress damage feasant. 3 B. C. 6; Broom and Had. Com. B. 2. p. 74. The offer made included sufficient matter to prove a rescue. It was not necessary that positive violence, or menacing or threaten- ing words should be employed to characterize the act as a rescue of the beast. The taking away and setting at liberty against law the distrained animal, constitutes a rescue. 1 Inst. 160 b; Bac. Ab. "Rescue" a; 1 Wheat. Sel. 689. Such a taking is esteemed in law a violent taking. The facts offered showed a lawful distress and impounding, and the taking away and setting at liberty by the defendant, without the consent of the plaintiff, was a taking away and setting at liberty against law. The proposed facts, then, if admitted, would have shown, in the absence of any countervailing circumstance, a rescue by the defendant. And the statute forbade any showing by the latter of irregularities alleged by the defendant in the course taken by the plaintiff. The plaintiff was therefore warranted in his offer, and the court erred in rejecting it. No question has been made as to what were proper items of damage, and we are not to be understood as saying that those claimed for irregular proceedings, or for the keep of the animal in the course of such proceedings, would be recoverable. The judgment should be reversed, with costs, and a new trial or- dered. See "Animals," Century Dig. §§ 390, 396, 422; Decennial and Am. Dig. Key No. Series, §§ 9.5. 101. MILLER y. STATE, 5 Ga. App. 463, 63 S. E. 571. 1909. Trespassing Animals. Bogs That Kill Sheep, Suck Eggs, etc. [Miller was indicted for cruelty to animals. Verdict and judgment against him, and he carried the case up by writ of error. Reversed. Miller killed a dog upon its owner's premises, in the presence of the owner's family. The dog had killed several sheep, at different times, which sheep belonged to Miller's father. Owing to its shyness, the dog could not be killed while in the act of chasing the sheep. Complaint was made to the owner of the dog; but he refused to confine it, saying, however, that If the dog killed any more sheep, it might be killed, or might be killed while in the act of killing the sheep. The judge charged that Miller had no right to kill the dog, even on Miller's own premises, unless while the dog was in the act of killing or interfering with the defendant's sheep. The killing of the dog was done under ii;iStructions given by Miller's father.] 46 ^S'1TH0UT JUDICLUL PROCEEDINGS. [Ck. 1. Powell, J. Judge Hamilton, who tried the case in the court below and who is usually so well versed in all matters of general jurisprudence, seems to have gone wrong when he encountered the intricacies of the dog law. He was doubtless misled by the precedents of the modem English cases when -he should have looked further back to the ancient wisdom of the common-law -authorities. He seems to have overlooked the provision of the canine code which mai:es the practices of egg-sucking and sheep- killing capital felonies. Such is the law, and so it has been so long that the memory of dogs and men runneth not to the contrary. In- deed, in the case of Wadhurst v. Damme, Cro. Jac. 45, decided by the court of King's Bench over 300 years ago, Sir John Popham, Knt., Chief Justice, in a case where the warrener killed a dog which had been killing conies in his warren, said : ' ' The common use of England is to kill dogs and cats in all warrens, as well as any vermin ; which shows that the law hath been always taken to be that they may well kill them." And all the court joined in holding the defendant not liable, saying: "It is good cause for the killing him in salvation of his conies, for, having used to hunt the warren, he cannot otherwise be restrained." The cynical (the word may be taken here in its etymological as well as in its popular meaning) reflection of the modem philoso- pher that the more he sees of some dogs the less he thinks of some men, has no reference to suck-egg dogs or to sheep-killing dogs. In some states (e. g., Massachusetts, Missouri, and California) the sheep-killing dog is made an outlaw by statute. In this state his status is a part of the higher or unwritten law. We think that the court erred in holding that it was necessary to kill the dog in flagrante delicto to make the act justifiable. It may be true — and there is respectable authority to support the proposition — that the sucking of a single egg or the worrying of sheep one time may not establish a dog 's status as an outlaw and a nuisance so as to jus- tify his summary execution whenever and wherever he may there- after be met (see Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35 ; Wells V. Head, 4 Car. & P. 568 ; Dodson v. Mock, 20 N. C. 282, 32 Am. Dec. 677; Bowers v. Horan, 93 Mich. 420, 58 N. W. 535. 17 L. R. A. 773, 32 Am. St. Rep. 513), but, when a dog acquires the egg-sucking or sheep-killing habit, he becomes a mmance and man he destroyed as such (Throne v. Mead, 122 Mich. 273. 80 N. W. 1080, 80 Am. St. Rep. 568; Dodson v. Mock, supra; Hinckley v. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dec. 383; Brown v. Car- penter, 26 Vt. 638, 62 Am. Dec. 603; Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209, 15 L. R. .V. 249, 30 Am. St. R. 426, and notes ; Simmonds v. Holmes, 61 Conn. 1 , 23 Atl. 702, 15 L. R. A . 253; Nesbett v. Wilbur, 177 Mass. 200, 58 N. E. 586; Wood on Nuisances (3d ed.), s. 771). In Boulton v. Banks, Cro. Car. 254 (B. R.), a dog alleged to have been "afEectus ad mordendum por- cos" was held not to be a dog which one might lawfully keep. We cannot agree with those courts which hold that a dog is not a do- mestic animal within the purview of statutes punishing cruelty to domestic animals (see Wilcox v. State, 101 Ga. 563, 28 S. E. 981, Sec. 2 a.] wiTHOi'T judicial proceed] ngs. 47 89 L. R. A. 709 ; May v. State, 120 Ga. 497, 48 S. E. 153) ; but, as much as we love some dogs (for the writer admits that he loves .some dogs), we must concede the correctness of the doctrine, al- most universally recognized by the courts, that the dog is not in full fellowship and standing in this circle of domestic proteges, that his rights are more limited, and his protection less complete. See Blair v. Forehand, 100 Mass. 140, 97 Am. Dec. 82, 1 Am. Rep. 94. Whether the killing of a dog is justifiable or not, as related to a civil case, seems to depend upon whether the killing was done. )wt necessarily wliile some act of depredation luas in progress, hut utider such circwmstances as that the killing ivas a fair act of pru- dence on the part of the person doing the killing, reasonable re- gard being had as to the value of the dog, the value of the prop- erty menaced, and the probability of present or future depreda- tions. Compare Hodges v. Causey, 77 Miss. 353, 26 South. 945, 48 L. R. A. 95, 78 Am. St. Rep. 525. In a criminal prosecution "under a statute preventing wilful and unjustifiable cruelty to a domestic animal, such as the one under which the present defend- ant was accused and tried, the defendant should not be convicted if the dog was killed not in a spirit of cruelty, but because it had shown itself to be a menace to property more valuable than it- self; the defendant's motive and the spirit actuating him being generally questions for the jury. The well known habits of sheep- killing dogs, of being so sly and wary when engaged in their ne- farious practices as to elude every approach of the owner of the sheep, would render the privilege of killing only when the ma- rauder was in flagrante delicto a very inadequate protection. Even the human cur who has invaded the domestic fold, and who is likely to invade it further, may be killed, though the injured person does not catch him in the very act. Biggs v. State, 29 Ga. 723(4), 76 Am. Dee. 630; Drysdale v. State, 83 Ga. 744, 10 S. E. 358, 6 L. R. A, 424, 20 Am. St. Rep. 340. . . Young ]\Ir. Miller it must be conceded committed a serious breach of propriety and a lack of neighborly consideration in kill- ing the dog in Mr. Stanton's yard in the presence of the latter 's family. They doubtless loved the little fice. These little animals, however worthless they may be, have a way of endearing them- selves, especially to the women and children of the family. I well remember how in the days gone by my childish tears flowed as in poignant grief I stood broken-hearted and viewed the cold re- mains of my flne dog, Buster, who had met an untimely death. But under the record we are inclined to think that the defend- ant's crueltv was operative against IMr. Stanton's family rather than against the dog, which seems to have been worthless and of a vicious temperament. He did wrong to shoot when and where he did. but he is entitled to a new trial as to the penal offense with which he stands charged. Judgment reversed. See Revisal, s. 3304; State v. Churchill, 98 Pac. — , 19 L. R. A. (N. S.) 835, and notes. See "Animals," Century Dig. §§ 282-287: Decennial and Am. Dig. Key No. Series, §§ 81, 84. ■48 WITHOUT JUDICDVL PROCEEDINGS. [CJl. 1. AMICK V. O'HARA, 6 Blackford, 258. 1842. Defense of Property from Trespassing Animals. Negligence. Force. Distress. Blackford, J. O'Hara brought an action of trespass for an injury done to his mare by [Amiek who was the defendant in the lower court.] Plea, not guilty. Verdict for the plaintiff [O'Hara]. Motion for a new trial overruled, and judgment on the verdict. [Affirmed. J The evidence shows the following facts : The defendant, Amick, had a field in which com was growing, enclosed by a good fence. The defendant, finding the plaintiff's, O'Hara 's, mare in the field late at night, set his dogs on her, one a small dog, the other a lai-ge, fierce one, and thus drove her out of the field. The mare was bit in the nose by one of the dogs, and in running from them, had a snag run into her, which, in a day or two, caused her death. The defendant, Amick, moved the court to instruct the jury. that if they believed from the evidence that the mare was tres- passing on his field of corn ; that he used ordinary care and dili- gence in driving her from the field ; and that he did not intend to injure her ; they should find for him. This instruction was rightly refused. There are two objections to it. First, it was not applicable to the case. There was no evidence, that the de- fendant used ordinary care and diligence in driving the mare from his premises. The evidence on the subject is the other way. Secondly, it was not essential to the support of the action, that the defendant intended to injure the mare. If a person unlaw- fully injure another's property, he is liable to an action for the damage, without regard to the intention with which the act was done. It is upon that principle, that even a lunatic is liable, civiliter, for a trespass against the person or property of another. Weaver v. Ward, Hobart, 134; Haycraft v, CreasJ^ 2 East. 92. per Ld. Kenyon. The court gave the following instructipn : If the defendant. Amick, hunted the mare from the field with a dog. and she was thereby injured, he is liable for the damages. This instruction was objected to. The law on the subject is stated in Bacon's Abr. as follows: "If J. S. chase the beast of J. N. with a little dog out of land in the possession of J. S., an action of trespass does not lie, inasmuch as J. S. has an election to do this, or to distrain the beast. But if J. S. chase the beast of J, N. with a mastiff dog out of land in the possession of J. S., and any hurt be thereby done to the beast, this action does lie; the chasing with such a dog being unlawful." Bac. Abr. tit. Trespass. E. According to that doctrine, the instruction given was not strictly correct ; but still we do not consider that to be a sufficient reason for reversing the judgment in this case. We have the evidence before us, and as it fully sustains the verdict, the objection to the instruction is not material. The evidence shows that the de- fendant chased the mare out of his field with a large, fierce dog, Sec. 2 a.] without judicial proceedings. 49 which was an unlawful act, and he must be held liable for the in- jury which that act occasioned. Per Curiam. The judgment is affirmed. See "Animals," Century Dig. § 373; Decennial and Am. Dig. Key No Series, § 94. BOST V. MINGUES, 64 N. C. 44, 46. 1870. Defense of Property from Trespassing Animals. Excessive Force. [Plaintiff sued Mingues for damages caused by his Icilling plaintiff's boar. Verdict and Judgment against defendant, and lie appealed. Affirmed. There was evidence that the boar in question had on three occasions broken through defendant's fence and entered his field, letting in also a number of other hogs and thereby destroying about seventy-five bushels of defendant's corn. On each occasion, except the last, the boar had been turned out of the field uninjured and the fence had been properly repaired. At length the boar was shot by orders of the de- fendant under the following circumstances: The boar was attempting to break into the defendant's corn field. Defendant ordered his hands* to drive it away, which they endeavored to do with the aid of dogs. The boar, after routing both hands and dogs on two occasions, broke- through the fence where it was five feet in height, and entered the field. Immediately thereupon the defendant caused the boar to be shot. There was a conflict of evidence as to the height and strength of defendant's fence. The boar was unmarked, and the defendant, after inquiry, was unable to ascertain who was its owner. The judge refused to charge that under the proof the defendant had a right to kill the boar as a nuisance: but did instruct them that if the fence around de- fendant's field, in v/^hich the boar was killed, was not five feet high at all points, the killing of the boar was unlawful and plaintiff was en- titled to damages if the boar was his property. Defendant excepted.] Eeade, J. The defendant had no right to kill the hog for what he had already done : that were to take vengeance. Nor had he the right to kill him to prevent an anticipated mischief; for that might never happen. Nor had he the right to kill him for breaking over the fence, to get away from the dogs; for that was the instinct of self-preservation, incited by the violence of the pursuit. It is the custom of the country that stock shall run at large; ?nd because of the unnecessary expense, every owner of stock does not keep a bull or a boar. A few in each neighborhood are sufficient. They are regarded as public conveniences, and are indulged to considerable latitude, in "the freedom of the neigh- borhood. ' ' The hog in question seems to have been improved stock, a Chester boar, worth $50. From the fact that he was not marked, and was allowed the range, he seems to have been devoted to the service of the public by his liberal owner, and was in no sense a nuisance. To kill such a hog, was an injury to the plaintiff and a loss to the public, and would have been bad neighborship in the defendant, if it were not apparent that the killing was done un- Remedies — 4. 50 WITHOUT JUDICIAi, PROCEEDINGS. [C It . 1. der considerable provocation, and under the impulse of the mo- ment. It was plausibly urged for the defendant that, inasmuch as the hog was not marked, and the owner was unknown, he could have no redress for the depredations upon his crop ; but that is not so, for the stray-law gave an ample remedy. To this suggestion it was objected by the defendant, that he could not catch him. It seems that with dogs he could not, but milder means would doubtless have been effective, and they were not tried. His hon- or's instructions that the defendant had no right to kill the hog unless his fence were five feet high ' ' all around, ' ' did the defend- ant no injustice, and was more favorable to him than the law al- lows, for he had no right to kill under the circumstances, if his fence had been five feet all around. Moi-so v. Nixon. 51 N. C. 293. There is no error. See "Williams v. Dixon, 65 N. C. 416, and State v. Neal, 120 N. C. 613, 27 S. E. 81, for other cases of killing trespassing animals and fowls while damage feasant. See "Animals," Century Dig. § 375: Decennial and Am. Dig. Key No. Series, § 96. (b) Recaption of Property. JOHNSON V. PERRY, .56 Vt. 703, 48 Am. Rep. 826. 1884. Retaking Chattels from Tort-feasor. What Force May Be Used. [Johnson sued Perry for assault. Judgment against plaintiff. Plain- tiff appealed. Affirmed. The facts are stated in the beginning of the opinion.] Veazey, J. The slabs in question belonged to the defendant, but were in the possession of the plaintiff, on his sled, on defendant 's premises. The plaintiff had got the possession with- out permission of the defendant. Under these circumstances the defendant was proceeding to repossess himself of the slabs, by throwing them from the sled, when the plaintiff interfered, by throwing the slabs back on to the sled ; and the defendant used what force was necessary to prevent the interference, and to un- load the slabs. For the assault of the defendant, under these circumstances, this suit was brought. Had the defendant the legal right to use this force upon the plaintiff, is the question to be determined. In Tale v. Seeley, 15 Vt. 221, it was held that one has a legal right to enter upon the land of another to take away wood be- longing to the former; and should the owner of the land attempt to hinder him in the enjoyment of the right, he woi;ld be justified in using such force as might be necesary to overcome the hinder- ance. He had, in that case, bought the trees of a former owner of the land, and cut them before the sale of the land. It wa.s in- Sec. 2 6.] WITHOUT judicial proceedings. 51 sisted in that ease, that the party, claiming the I'ight to go upon another's land for such purpose, is entitled to the enjoyment of it only when it can be done in a " peaceable manner. ' ' The court srtid upon this point: "This is a qualification that is sometimes affixed to the right of recapture and reprisal, and applies to the regaining of personal property that has been wrongfully taken or withheld; and the law recognizes the right only within that qualification. But it is not so with regard to the right to enter upon another's land. If it is my right, the law will protect me in the enjoyment of it, and the person who attempts to hinder or obstruct me is the aggressor, and the first in the wrong. ' ' In Hodgeden v. Hubbard, 18 Vt. 504, it was held that if a per- son purchase personal property, such as a stove, by means of false and fraudulent representations as to his solvency and means of payment for it, he acquires no right either of property or pos- session, and the vendor will be justified in pursuing him and re- taking the property, and to effect this object, even against the re- sistance of the purchaser, he maj^ use as much force as may be necessary. In delivering the judgment of the court. Chief Jas- tice Williams said : "In the present case the defendant had clearly a right to retake the property thus fraudulently obtained from him, if it could be done without unnecessary violence to the per- son, or without breach of the peace. It is admitted by the coun- sel for the plaintiff, that a right to recapture existed in the de- fendant, if it could be done without violence, or breach of the peace, and how far this qualification of the right to retake prop- erty, thus taken, was intended for the security or benefit of the fraudulent possessor, may admit of some doubt. "Whoever is guilty of a breach of the peace, or of doing unnecesary violence to the person of another, although it may be in the assertion of an un- questioned and undoubted right, is liable to be prosecuted there- for. But the fraudulent possessor is not the protector of the pub- lic interest. To obtain possession of the property in question, no violence to the person of the plaintiff was necessary or required, unless from his resistance. It was not like property carried about the person, as a watch or money, nor did it require a number of people to effect the object. The plaintiff had no lawful posses- sion, nor any right to resist the attempt of the defendant to re- gain the property." These cases were criticised in Dustin v. Cowdry, 23 Vt. 631, but not overniled. When the case at bar was before this court at the February term, 1882, reported in 54 Vt. 459, Judge Ross said : " On the doctrine of these eases, the plaintiff was entitled to have his request complied with." The charge to the jury con- formed to the doctrine of these eases, and must be held correct, or these cases practically overruled. Indeed this case is scarcely as strong for the plaintiff as was that of Hodgeden v. Hubbard. There the defendant had put the plaintiff in possession of the stove, and the latter had departed, and was on his way home. In this case the plaintiff had gone on 52 WITHOUT JUDICIAL PROCEEDINGS. [Oh. 1. to the defendant's premises and loaded the slabs without any right or license, and before he had departed, the owner inter- fered. The property was of a kind that could be retaken without violating the person of the plaintiff, unless he became the ag- gressor by wrongfully hindering the defendant in his lawful act. We should not be disposed to extend the law of the Hodgeden V. Hubbard case. But we are not disposed to overrule it, espe- cially in this ease ; or to adopt a rule that when one man goes on to another's premises, without right or license, and undertakes to carry away his property, the latter cannot interfere to stop it, and to use sufficient force for the purpose, even against the re- sistance of the wrongdoer, when in order for the owner to assert his right, he can do it without violating the person of the wrong- doer, unless he interferes and persists in his wrongdoing. Judg- ment affirmed. See Leward v. Basely, 2 Ld. Raym. 62, supra, sec. 2 (a). See also for a valuable discussion of the right to recapture chattels and the amount of force that may be used, 22 Atl. 1111, 14 L. R. A. 317, and note; Mikell's Cases on Crlm. Law (Orig. Ed.) 406. See "Assault and Battery," Century Dig. § 14; Decennial and Am. Dig. Key No. Series, § 15. BARNES V. MARTIN, 15 "Wis. 263. 1862. Resisting Unlawful Attempt to Retake Chattels. Force That May Be Used. [Martin and his wife were the plaintiffs below. They sued Barnes for an assault and battery upon Mrs. Martin. There was a verdict and judgment in their favor, and Barnes carried the case to the supreme court by writ of error. Reversed. The defendant below, Barnes, pleaded that, at the time the alleged assault took place, he was possessed of a certain close and of a cow therein, and that Mrs. Martin broke into the close by force and endeav- ored to take away the cow forcibly; whereupon he, Barnes, resisted her, and if she suffered any injury, it happened of her own wrong, etc. The gist of the case was, that Barnes had distrained Martin's cow while it was on Barnes' premises damage feasant; and Mrs. Martin was injured by Barnes, while she was attempting to rescue the cow. The fourth and sixth instructions referred to in the opinion are as follows: 4." That if the jury should find that the plaintiff Barbara intended by her acts, in order to obtain the cow, to commit violence upon, or menaced violence to, the defendant, with the butcher knife, then her acts on coming up to the defendant on the occasion referred to in the case, with the intention of executing her purpose, amounted to an as- sault first upon the defendant. ... 6. That the jury had no right to find punitive or exemplary damages, unless they first found that the acts of the defendant in resisting the taking of the cow from him were governed by wanton or malicious motives, and were without ap- parent cause. Only so much of the opinion as bears upon the subject under discus- sion, is inserted.] Sec. 2 6.] WITHOUT judicial proceedings. 53 Dixon, C. J. All the witnesses concur in saying that the plaintiff in error had taken up and was peaceably possessed of the cow at the time of the affray. The defendant in error, Barbara, came for and demanded that the cow be delivered up, which the plaintiff refused. She then went home, and soon afterward re- turned with a knife in her hand, avowing her purpose to take the cow by force. The plaintiff resisted, and it was in the prose- cution of this unlawful enterprise that she received her injuries. For whether the plaintiff was authorized to take up the cow, and might lawfuly detain her or not, the defendant Barbara had no right to retake her by force. The law affords ample redress for all injuries of that kind, and will not justify parties in resorting to violence and breaking the public peace. The defendant was, therefore, acting in her own wrong in thus endeavoring to dis- possess the plaintiff, and that whether his possession was lawful or unlawful. Under these circumstances, we think it clear that the judge should have given the fourth and sixth instructions asked by the plaintiff. It canuot be disputed, if the jury had found that the defendant in error, in order to obtain the cow, threatened and intended to commit violence upon the plaintiff with the knife, that her acts in coming up to him with the inten- tion of executing such purpose, would have amounted to an as- sault. Neither can it be claimed that vindictive damages should be given in such a case, unless the jury should find that the acts of the party resisting were without apparent cause, and proceeded from wanton or malicious motives. It would seem to be one of the clearest principles of justice, that a party resisting the for- cible and unlawful act of another ought not to be punished by way of exemplary damages, unless he be guilty of excess and act from motives of malice. . . . Judgment reversed, and a new trial awarded. See Hamlin v. Mack, 33 Mich. 103, inserted sec. 2 (o), supra, and the cases immediately following that case. See also Andre v. Johnson, 6 Blackford, 375. See "Assault and Battery," Century Dig. §§ 3, 14; Decennial and Am. Dig. Key No. Series, §§ 5, 15. COMMONWEALTH v. DONAHUE, 148 Mass. 529, 20 N. B. 171. 1889. Retaking Property iy Force. [Donahue was indicted for robbery. He was convicted of an assault. Judgment against him, and he appealed. Reversed. Mitchelman claimed that Donahue owed him $21.55. Donahue placed $20 on a ta- ble, and placed some clothes — the price of which was the casus belli — upon a chair. He then told Mitchelman that he could have the money or the clothes. Mitchelman pocketed the money, but still claimed $1.55 more. Donahue thereupon demanded the return of the $20, which be- ing refused, he choked Mitchelman until it was surrendered. The jury were instructed that they could render a verdict of guilty if satis- fled that Donahue choked and assaulted Mitchelman, although for the sole purpose of getting possession of the money which he honestly be- lieved to be his own. Defendant excepted.] 5-1: WITHOUT JUDICIAL PROCEEDINGS. [€h. 1. Holmes, J. . . On the evidence for the commonwealth, it appeared that the defendant offered the $20 to Mitchelman only on condition that Mitchelman should accept that sum as full payment of his disputed bill, and that Mitchelman took the money, and at the same moment, or just afterwards, as part of the same transaction, repudiated the condition. If this was the case, since Mitchelman, of course, whatever the sum due him, had no right to that particular money except on the conditions on which it was offered (Com. v. Stebbins, 8 Gray, 492), he took the money wrongfully from the possession of the defendant; or the jury might have found that he did, whether the true view be that the defendant did not give up possession, or that it was ob- tained from him by Mitchelman 's fraud (Com. v. Devlin. 141 Mass. 423, 6 N. E. Eep, 64; Chiffer's Case, T. Raym. 275, 276; Reg. V. Thompson, Leigh & C. 225; Reg. v. Slowly, 12 Cox, Crim. Cas. 269; Reg. v. Rodway, 9 Car. & P. 784; Rex v. Williams, 6 Car. & P. 390; 2 Bast, P C. c. 16, §§ 110-113). See Reg. v. Co- hen, 2 Denison, Cr. Cas. 249, and eases infra. The defendant made a demand, if that was necessary, — which we do not im- ply, — before using force. Green v. Goddard, 2 Salk. 641 ; Polk- inhom v. Wright, 8 Q. B. 197 ; Com. v. Clark, 2 Mete. 23, 25 ; and cases infra. It is settled by ancient and modem authority that under such circumstances a man may defend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding, or the employment of a dangerous weapon. Com. v. Lynn, 123 Mass. 218; Com. v. Kennard, 8 Pick. 133; Anderson v. State. 6 Baxt. 608; State v. Elliot, 11 N. H. 540, 545; Rex v. Milton, Moody & M. 107, T. B. 9 Edw. IV. 28. pi. 42, 19 Hen. VI. 31, pi. 59, 21 Hen. VI. 27, pi. 9. See Sea- man V. Cuppledick, Owen. 150; Taylor v. Markham, Cro. Jae. 224, Yelv. 157, 1 Brownl. 215; Shingleton v. Smith, Lutw. 1481, 1483, 2 Inst. 316, Finch, Law 203, 1 Hawk. P. C. c. 60, § 23, 3 Bl. Comm. 121. To this extent the right to protect one's posses- sion has been regarded as an extension of the right to protect one's person, with which it is generally mentioned. Baldwin v. Havden, 6 Conn. 453, T. B. 19 Hen. VI. pi. 59 ; Rogers v. Spenee, 13 Mees. & W. 579. 591, 1 Hawk. P C. c. 60, § 23, 3 Bl. Comm. 120. 131. We need not consider whether this explanation is quite ade- quate. There are weighty decisions which go further than those above cited, and which hardly can stand on the right of self-de- fense, but involve other considerations of policy. It has been held that even where a considerable time had elapsed between the wrongful taking of the defendant's property and the assault, the defendant had a right to regain possession by reasonable force, after demand upon the third person in possession in like man- ner as he might have protected it without civil liability. What- ever the true rule may be, probably there is no difference in this respect between the civil and the criminal law. Blades v. Higgs. 10 0, B. (N. S.) 713. 12 r. B. (N. S.) 501, 13 C. B. (N. S.) 844. Sec. 2 b.] WITHOUT JUDICIAL PROCEEDINGS. ■ 55 11 H. L. Cas. 621 ; Com. v. McCue, 16 Gray, 226, 227. The prin- ciple has been extended to a case where the defendant had yielded possession to the person assaulted, through the fraud of the lat- ter. Hodgeden v. Hubbard, 18 Vt. 504. See Johnson v. Perry, 56 Vt. 703. On the other hand, a distinction has been taken be- tween right to maintain possession and the right to regain it from another who is peaceably established in it, although the posses- sion of the latter is wrongful. Bobb v. Bosworth, Litt. Sel. Cas. 81. See Barnes v. Martin, 15 Wis. 240; Andre v. Johnson, 6 Blackf . 375 ; Davis v. Whitridge, 2 Strob. 232 ; 3 Bl. Comm. 4. It is unnecessary to decide whether in this case, if Mitchelman had taken the money with a fraudulent intent, but had not repu- diated the condition until afterwards, the defendant ^\'ould have had any other remedy than to hold him to his bargain, if he could, even if he knew that Mitchelman still had the identical money upon his person. If the force used by the defendant was excessive, the jury would have been warranted in finding him guilty. "Whether it was excessive or not was a question for them ; the judge could not rule that it was not, as matter of law. Com. v. Clark, 2 Mete. 23. Therefore the instruction given to them, taken only literally, was correct. But the preliminary statement went further, and was erroneous; and, coupling that statement with the defendant's offer of proof, and his course after the rul- ings, we think it fair to assume that the instruction was not un- derstood to be limited, or indeed to be directed, to the case of ex- cessive force, which, so far as appears, had not been mentioned, but that it was intended and understood to mean that any as- sault to regain his own money would warrant finding the defend- ant guilty. Therefore the exceptions must be sustained. See "Assault and Battery," Century Dig. §§ 99, 145; Decennial and Am. Dig. Key No. Series, §§ 69, 145 (4). McLEOD V. JONES, 105 Mass. 403. 1870. Entering Upon Another's Land to Retake Chattels. [Tort for forcibly entering the plaintiff's close and removing, and converting to the defendant's use, household furniture found therein. Verdict and judgment against defendant, and he appealed. Affirmed. McLeod once lived in Providence and, while living there, gave Jones a bill of sale for certain furniture. Thereafter McLeod moved to Taunton and carried Jones' furniture with him together with certain other chattels which he had previously mortgaged to Jones. All of these goods were in plaintiff's dwelling in Taunton when he and his family left Taunton for a visit — he going to New York and his wife and children to Pall River. Three or four days after their departure, Jones, believing, and having reasons for so believing, that McLeod had left with no intention to return to Taunton, entered McLeod's dwelling in Taunton, and removed the furniture embraced In the bill of sale which McLeod had made to him. The judge below ruled that under -such circumstances Jones was liable in this action for a forcible entry, 56 WITHOUT JUDICIAL PROCEEDINGS. [C/l. 1. although his only purpose was to get possession of his own property; that Jones had no right to enter Mcljeod's house for such purpose, without permission or license, express or implied, from McLeod; and that the mere fact that Jones' goods were in the house under the cir- cumstances stated, did not amount to such license or permission. De- fendant excepted.] Wells, J. The defendant was liable as a trespasser for enter- ing the plaintiff's close, unless he can justify his entry by some legal right, or by some license or permission so to do. The plain- tifE's absence will not excuse him. Reasonable cause to believe, and actual belief that the plaintiff and his family did not intend to return, are no defense. The only question is, whether the rul- ing of the court below was correct, that "the mere fact that his goods were in said premises under the circumstances stated" did not furnish a sufficient ground from which a license, permission or legal right could be inferred. In the decision of this question, we must assume that the de- fendant 's claim would have been sustained, that his title, as mort- gagee of all the property taken away by him, was valid, and his mortgage debt unpaid. He had then a right to the possession of the property which he took. But the possession of the plaintiff, as mortgagor, was not wrongful. The goods were rightfully upon his premises. There is nothing to show that the terms of the mortgage, or bill of sale, under which the defendant claimed them, gave him any special authority to enter for the purpose of recovering the property, in any event ; nor that the removal of the goods from the shop to the house, or from Providence to Taunton, was inconsistent with the rights of the mortgagee, or against his wishes. The removal from Providence was about two years before the time of his entry. The goods then were rightfully in the custody of the plaintiff, and within his close. The defendant was the owner of the legal title, with a present right of possession. Does that alone justify him in a breach of the plaintiff's close? A majority of the court are of the opinion that it does not. One whose goods are stolen, or otherwise illegally taken from him, may pursue and retake them wherever they may be found. No one can deprive him of this right, by wrongfully placing them upon his own close. Patrick v. Colerick, 3 M. & W. 483 ; Webb v. Beavan, 6 M. & G-. 1055, and note; Com. Dig. Trespass D, citing 2 Rol. Ab. 565, L. 54; Bac. Ab. Trespass F, 1. But if they are deposited iipon the land of another, who is not a participant in the wrongful taking, the owner cannot enter upon his land to re- take them; unless in ease of theft, and fresh pursuit. 20 Vin. Ab. 506, Trespass H, a. 2, pi. 4, 5. So, from the necessity of the ease, one whose cattle escape upon the land of another may follow and drive them back, without being a trespasser, unless the escape itself was a trespass. Com. Dig. Trespass D, citing 2 Rol. Ab. 565, L. 35. In these cases, the law gives the party a right to enter for that particular purpose. Sec. 2 &.] WITHOUT JUDICIAL PROCEEDINGS. 57 In other eases a right or license to enter upon land results, or may be inferred, from the contracts of the parties in relation to personalty. Permission to keep, or the right to have one's per- sonal property upon the land of another, involves the right to en- ter for its removal. Doty v. Gorham, 5 Pick. 487 ; Bae. Ab. Tres- pass F, 1 ; White V. Blwell, 48 Maine, 360. A sale of chattels, which are at the time upon the land of the seller, will authorize an entry upon the land to remove them, if, by the express or implied terms of the sale, that is the place where the purchaser is to take them. Wood v. Manley, 11 Ad. & El. 34 ; Nettleton v. Sikes, 8 Met. 34 ; Giles v. Simonds, 15 Gray, 441 ; Drake v. Wells, 11 Allen, 141 ; McNeal v. Emerson, 15 Gray, 384. A license is implied, because it is necessary in order to carry the sale into complete effect ; and is therefore presumed to have been in contemplation of the parties. It forms a part of the con- tract of sale. The seller cannot deprive the purchaser of his prop- erty, or drive him to an action for its recovery, by withdrawing his implied permission to come and take it. This proposition does not apply, of course, to a case where a severance from the realty is necessary to convert the subject of the sale into personalty, and the revocation is made before such severance. But there is no such inference to be drawn, when the property, at the time of sale, is not upon the seller's premises ; or when, by the terms of the contract, it is to be delivered elsewhere. And when there is nothing executory or incomplete between the parties in respect to the property, and there is no relation of contract between them affecting it, except what results from the facts of ownership or legal title in one and possession in the other, no inference of a license to enter upon lands for the recov- ery of the property can be drawn from that relation alone. 20 Vin. Ab. 508, Trespass H. a. 2 pi. 18. Anthony v. Haneys 8 Bing. 186 ; Williams v. Morris, 8 M. & W. 488. We think the authorities cited illustrate and establish these distinctions. It is said in Com. Dig. Trespass D, citing 2 Rol. Ab. 566, L 30, that I may not enter lands "for retaking goods, which he, who holds them in common with me, put there; for though a ten- ant in common may retake goods in common, when the other takes them, yet he cannot justify a trespass to do it." In Wood V. Manley, 11 Ad. & El. 34, where the doctrine that a sale of goods, to be taken on the premises of the seller, gives a li- cense to the purchaser to enter and take them, is laid down, it is guarded by the remark of Patteson, J., "I do not say that a mere purchase will give a license." In Bac. Ab. Trespass F, 1, it is said: "But if J. S. have com- manded A. to deliver a beast to J. N. and J. N. go into the close of J. S. to receive the beast, the action does lie ; for, as the beast might have been delivered at the gate of the close, the going of J. N. thereinto is not necessary. " In the note to Webb v. Beavan, 6 M. & G. 1055, is a citation from the year books, 9 Edw. IV. 35, in which Littleton, J., after 58 WITHOUT JUDICIxVL PROCEEDINGS. [Ch. 1. laying doM'ii the doctrine that a man may enter the close of an- other to retake his own goods wrongMly put there, is reported to have said : ' ' But it is otherwise if I bail goods to a man. I cannot enter his hcuLse and take the goods, for they did not come there by wrong, but by the act of us both. ' ' It is by act of both, that goods, upon which the defendant had only a chattel mortgage, leaving the possession rightfullj' with the plaintiff, were in the plaintiif 's house. In 20 Vin. Ab. 507, Trespass II, a. 2, pi. ]2, it is said : "If a man takes my goods and puts them upon his land, I maj^ enter and retake them. Contrary upon bailment of goods," citing the above authority of Littleton. A note contains the following: ""When a man bails goods to an- other to keep, it is not lawful for him, though the doors are open, to enter into the house of the bailee and to take the goods, but ought to demand them ; and if they are denied, to bring writ of detinue, and to obtain them by law," citing Bro. Ab. Trespass, pi. 208, and 21 Hen. VII. 13. A right to enter the premises of the mortgagor, without legal process, is not essential to the se- curity of the mortgagee of personal property. Permission to do so is not implied, therefore, from the existence of that relation alone. If there was anything in the form of the mortgage or bill of sale, or in the natiire and circumstances of the plaintiff's pos- session of the property, which gave the defendant a right to seek it within the close of the plaintiff, where it had been deposited since the date of the mortgage or bill of sale, it should have been made to appear. The burden was upon the defendant to estab- lish the special right which he set up in justification of his entry. At the trial, ke hosed his right to enter, solehj upon his title to Ike personal properiij, and the sxipposed abandonment of the premises by the plaintiff; and asked the court to rule that that was sufficient. The court held it to be insufficient ' ' without some license or permission from the plaintiff, express or implied." The defendant does not show that there was anything in the terms of his bill of sale or mortgage, or in the situation of the property at the time it was made, or in the circumstances of the plaintiff's possession at the time of the entrj^, from which such license or permission could be implied; and he asked no instructions upon the evidence upon that point, if any existed, at the trial. In McNeal v. Emerson, 15 Gray, 384, the property mortgaged was furniture, which remained in the same situation as when the mortgage was made, and the circumstances left the case in the same position substantially as a sale of personal property to be re- moved by the purchaser. In the case of Heath v. Randall. 4 Cush. 195, the jury must have found, under the instructions given them, that the contract was that the defendant had a right to take the property away any day until paid for, which was plainly understood to mean a right to talce it from the premises of the bailee. It is to be observed also, that in that case the question pressed in the argument, and to which the discussion by the court, was mainly directed, was that Sec. 2 c] WITHOUT JUDICIAL PROCEEDINGS. 59' of the right to terminate the bailment without demand of the bal- ance due upon the conditional purchase ; the right of entry upon the plaintiff's close being considered only incidentally. A majority of the court are of the opinion that the facts re- ported in this case are not sufficient to sustain the justification relied on by the defendant, and that the instructions upon that point were correct. If the defendant established his title to the property taken away, he would of course be liable only for such injury as he did to the plaintiff's house. But no question ap- pears to be raised as to the measure of damages, and we are to presume that proper instructions upon that point were given, Exceptions overruled. See further on this subject. Finch's Cases, 789, at pp. 791, 792; State V. Goode, 130 N. C. 651, 41 S. E. 3, inserted ante, in section 1, and note to that case; Stanley v. Payne, 62 Atl. 495, 3 L. R. A. (N. S.) 251 and note. See "Trespass," Century Dig. § 63; Decennial and Am. Dig. Key No. Series, § 27. (c) Entry. RANSOM V. LEWIS, 63 N. C. 43, 45. 1868. What Constitutes an Entry. [Action of ejectment, in which Ransom was "lessor of plaintifl," against Lewis. Judgment of nonsuit against the plaintiif, and he ap- pealed. Affirmed. The defendant and those under whom he claimed had been in pos- session, claiming title under a devise, from 1845 to the trial in 1868. In 1864 Ransom on various occasions cut wood on the land and carried it away. He also demised the land to a tenant, hut the tenant did not enter under such demise. These acts were done hy Ransom under a claim of owning the land, but Ms acts were unknown to any one except himself and his lessee. These facts being admitted, a verdict was, by consent, entered for the plaintiff, subject to the opinion of the court. The court set aside the verdict and nonsuited the plaintiff. The defendant claimed title by the adverse possession of himself and his predecessors, under color of title. Ransom claimed title under a deed made in 1862. The question was, whether or not Ransom's acts in 1864 amounted to an entry which would interrupt the adverse holding of the defendant, who was in possession.] Pearson, C. J. . . In our ease the lessor of the plaintiif, so far from taking exclusive possession, or even making an entry openly and aboveboard, merely slipped over upon the land occa- sionally and cut wood, and split and carried away some fence- rails and some pine straw, which was unknown to the defendant or any one else, so far as the evidence shows. It is true the lessor of the plaintiff leased the land, but the tenant, before entry, con- tracted with the defendant for the use and occupation of the land, and paid him the rent ; so that amounts to nothing. We hold that, in order to revest an estate which is divested by adverse possession linder color of title, there must be an open ertr- 60 _ WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. try under claim of right, so as to give notoriety to the matter, which is all that is nece<*sary to decide to dispose of this case. There is no error. Affirmed. See "Adverse Possession," Century Dig. § 235; Decennial and Am. Dig. Key No. Series, § 47. ALSBROOK V. SHIELDS, 67 N. C. 333, 336. 1872. Effect of Entry. Fieri Non Deiet Sed Factum Valet. [Plaintiff sued Shields for the conversion of a bale of cotton. Ver- dict and judgment against defendant, and he appealed. Reversed. Alsbrook and Shields each claimed title to a bale of cotton — ^Alsbrook as purchaser thereof from the tenant of Shields; and Shields under a landlord's lien for rent, etc. Shields took the cotton from a public gin at which it had been left by Alsbrook, and converted it to his own use without Alsbrook's consent. The judge instructed the jury that, as Alsbrook was in possession of the cotton when it was taken by Shields, he was entitled to recover; because, even if Shields was owner of the cotton, he could not lawfully retake possession thereof — as such recaption was calculated to produce a breach of the peace. To this Shields excepted. Only so much of the opinion is inserted as bears upon the point under consideration.! BoYDEN, J. . . . We understand his honor as instructing the jury that if the owner of property takes it out of the posses- sion of another under circumstances calculated to produce a breach of the peace, he may be sued for'sueh taking by the pos- sessor, and the value of the property recovered. The court had supposed that it was familiar learning that the owner of property thus taken could not be sued for the property ; and that if the owner of real estate had taken possession under circumstances calculated to produce a breach of the peace, and even if he committed a breach of the peace by ousting the posses- sor, still, he [the possessor] could not sustain a suit for the land ■ against the real owner, who had thus violently deprived him of the possession, and that a plea of liberum tenementum, if estab- lished, would bar the plaintiff's recovery. . . . Venire de novo. See "Trover and Conversion," Century Dig. §§ 164, 165; Decennial and Am. Dig. Key No. Series, § 23. ROBERTS ET AL. v. PRESTON, 106 N. C. 411, 420, 10 S. E. 983. 1890. Effect of Entry Continued. [Plaintiffs sued Preston for damages for alleged trespasses on land. Verdict and judgment against plaintiffs, and they appealed. Affirmed. Both parties claimed the locus in quo under Mills Roberts. Preston claimed that bis acts of alleged trespass were done under authority Sec. 3 C] WITHOUT JUDICIAL PROCEEDINGS. 61 from one Hettrick to whom the locus in quo had come, by mesne con- veyances, from Mills Roberts. Plaintiffs claimed title by descent from Mills Roberts. Some weeks previous to the acts complained of, Het- trick had entered upon the locus in quo and taken possession thereof. The alleged trespasses by Preston were committed under a claim of right as assignee of Hettrick, or by his permission. There was evi- dence tending to prove that plaintiffs were in the actual possession at the time of Hettrick's entry. "The plaintiffs requested the court to charge the jury as follows: 'Whether plaintiffs have proven title or not to the land in controversy, yet if they were in the actual possession of the land, or any part of it, and the defendant, while they were there in possession of the land, en- tered upon the land so in their possession, and built a tramway or cut down trees without the plaintiffs' permission, he was guilty of trespass, as charged in the complaint.' . . . This was given by the court, with the qualification: 'Unless the jury find from the evidence that at the time of Preston's entry, Hettrick was the owner of said land, had previously entered thereon, and taken possession thereof, and was at the time of Preston's entry in actual possession, and had authorized Pres- ton to enter.' . . . Plaintiffs excepted." There were other exceptions to the charge, but this exception is suf- ficient for the purpose in view.] Meeeimon, C. J. . . . There was evidence going to prove that Hettrick, under whom the defendant claims and justifies, had title to the land in question at and before the time of the al- leged trespasses, and that he then had actual possession and con- trol thereof, and that while he was so in possession, he allowed the defendant to cut timber, and do other things complained of, on the land. There was also evidence to the contrary. Unquestionably, the ovmer of land having the right of posses- sion may peaceably enter upon it, while another person, who has no right, has previously taken, and has, possession thereof. When the lawful owner thus enters and takes possession, the pos- session extends to the whole tract unless a person is in the wrong- ful possession of some part, in which case, his wrongful posses- sion is confined to the part of which he has actual possession. When the lawful owner thus takes possession, the law favors and helps him in the assertion of his right. Thus he has perfect title, and he may do whatever he may lawfully do with his ovsm prop- erty. He cannot be treated as a trespasser in such case He may put his agents and servants in possession of the land, or any part of it, under him, and may authorize other persons to cut timber, construct roads, and do other things on his land, and have the right to ingress, egress and regress. Nor can the person having such wrongful possession maintain trespass in such case against the lawful owner, or those in possession under him, or cutting timber, and doing other like things on the land by his permission or direction. This is so, because he goes into, and has, possession of right. Ring v. King, 20 N. C. 301 ; Tredwell v. Reddick, 23 N. C. 56 ; Everett v. Smith, 44 N. C. 303 ; White v. Cooper, 53 N. C. 48; Gadsby v. Dyer, 91 N. C. 311 ; Logan v. Fitzgerald, 92 N. C. 644; Gaylord v. Respass, ibid. 553; Nixon v. Williams, 95 N. C. 103. The court, therefore, properly declined to give the jury in- 62 WITHOUT JUDICJAL PROCEEDINGS. \Ch. 1. structioiis as specially demanded by the plaintiffs, without mod- ification. Affirmed. A had possession of a tenement, consisting of a main building and a shed attached. He locked the door of the shed In which he had some tools, etc., and, leaving a tenant in possession, went away intend- ing to return. Afterwards the tenant admitted B, who had the title and right of possession, into the peaceable possession of the main building; held, that B was not Indictable for a forcible entry in breaking into the shed and assuming possession of that too. State v. Pridgen, 30 N. C. 84. In 53 N. C. at p. 53, Pearson, C. J., says: "The plaintiff in this case by making an actual entry on the land by force of his title, was then iu possession notwithstanding the presence of defendant; for It is set- tled, that when two are on the land, the law adjudges the possession to be in the party who has title." See "Trespass," Century Dig. §§ 54-56; Decennial and Am. Dig. Key No. Series, § 25. LOW V. ELWELL ET AL., 121 Mass. 309, 23 Am. Rep. 272. 1876. Entry. Eviction of Tenant by Sufferatice. fTort for an assault In forcibly ejecting the plaintiff from her dwell- ing-house. By consent of parties, the case was carried to the supreme court upon agreed facts. If defendant was adjudged liable, the case was to stand merely for assessment of damages; If otherwise, the plain- tiff should become nonsuit. The Supreme Court nonsuited the plaintiff. The plaintiff, Ellen B. Low, was in possession of a house under an oral lease made to her husband, John C. Low, by the owner in fee thereof. In March, 1873, while she was thus In possession, the owner of the house duly demised it to the defendant, Zeno P. Elwell, and both the owner and Elwell gave written notice to John C. Low of this lease and to quit the premises. Under the law of Massachusetts the oral lease to John C. Low gave him no greater estate than a tenancy at will, which estate was terminated by the acts stated above, and, therefore, at the time of the alleged assault, John C. Low was a mere tenant at sufferance. As plaintiff did not quit the premises, the defendants, El- well and his wife, forcibly broke open the house at ten o'clock in the morning of April 15, 1873, and put the plaintiff and all of her effects out of the house against her protest. Elwell directed the plaintiff to leave the house, which she refused to do. Thereupon he took her by the shoulders and "ran her Into the street." Elwell and his wife then kept possession of the house.] Gray, C. J. A tenant holding over after the expiration of his tenancy is a mere tenant at sufferance, having no right of posses- sion against his landlord. Tf the landlord forcibly enters and expels him, the landlord may be indicted for the forcible entry. Rut he is not liable to an action of tort for damages, either for his entry upon the premises, or for an assault in expelling the tenant, provided he uses no more force than is necessary. The tenant cannot maintain an action in the nature of trespass quare olausum fregit, because the title and the lawful right to posses- sion are in the landlord, and the tenant, as against him, ha,s no right of occupation whatever. He cannot maintain an action, in the nature of trespass to his person, for a subsequent expulsion NtC. 2 C] WITHOUT JUDICIAL PROCEEDINGS. 63 with no more force than necessary to accomplish the purpose ; because the landlord, having obtained possession by an act which, though subject to be punished by the public as a breach of the peace, is not one of which the tenant has any right to complain, has, as against the tenant, the right of possession of the prem- ises; and the landlord, not being liable to the tenant in an action of tort for the principal act of entry upon the land, cannot be made liable to an action for the incidental act of expulsion, which the landlord, merely because of the tenant 's own unlawful resist- ance, has been obliged to resort to in order to make his entry effectual. To hold otherwise would enable a person, occupying land utterly without right, to keep out the lawful owner until the end of a suit by the latter to recover the possession to which he is legally entitled. This view of the law, notwithstanding some inconsistent opin- ions, is in accordance with the curi-ent of recent decisions in Eng- land and in this commonwealth. In Turner v. Meymott, 7 Moore, 574; S. C. 1 Bing. 158; it was decided that a tenant whose term had expired coxdd not main- tain trespass against his landlord for forcihlij hreaking and en- tering the house in his absence. In Hillary v. Gay, 6 C. & P. 284, indeed, Lord Lyndhurst at nisi prius, while recognizing the au- thority of that decision, ruled that if the landlord, after the ex- piration of the tenancy, by force put the tenant's wife and furni- ture into the street, he was liable to an action of trespass quare clausum f regit. And in Newton v. Harland, 1 Man. & Gr. 644; S. C. 1 Scott N. R. 474, a majority of the court of Common Pleas, overruling decisions of Baron Parke and Baron Alderson at nisi prius, held that under such circumstances the landlord was liable to an action of trespass for assault and battery. But in Harvey v. Brydges, 14 M. & AV. 437, Baron Parke stated his opinion, upon the point raised in Newton v. Harland, as fol- lows : "Where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff A\"as in possession of the land against the ttill of the defendant, who was owner, and that he entered upon it accordingly; even though, in so doing, a breach of the peace was committed." Baron Alderson concurred, and said that he retained the opinion that he expressed in Newton v. Harland, notwithstanding the decision of the majority of the court of comnion pleas to the contrary. The opinion thus de- liberately adhered to and positively declared by those eminent judges, though not required by the adjudication in Harvey v. Brydges, is of much weight. In Davis v. Burrell, 10 C. B. 821, 825, Mr. Justice Creswell said, that the doctrine of Xinvton v. Harland had been very much questioned. .\nd it was finally 64 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. overruled in Blades v. Higgs, 10 C. B. (N. S.) 713, where, in an action for an assault by forcibly taking the defendant's property from the plaintiff's hands, using no more force than was neces- sary, Chief Justice Erie, delivering the unanimous judgment of the court, approved the statement of Baron Parke, above quoted, and added: "In our opinion, all that is so said of the right of property in lands applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury, instead of redressing it. ' ' See also Lows v. Telford, 1 App. Gas. 414, 426. In Commonwealth v. Haley, 4 Allen, 318, the ease was upon an indictment for forcible entry, and no opinion was required or ex- pressed as to the landlord 's liability to a civil action. The judgment in Sampson v. Henry, 11 Pick. 379, turned upon a question of pleading. The declaration, which was in tres- pass for an assault and battery, alleged that the defendant as- saulted the plaintiff, and with a deadly weapon struck him many heavy and dangerous blows. The pleas of justification merely averred that the defendant was seized and had the right of pos- session of a dwelling-house, that the plaintiff was unlawfully in possession thereof, and opposed defendant's entry, and that the defendant used no more force than was necessary to enable him to enter and to overcome the plaintiff's resistance; but did not deny the use of the dangerous weapon and the degree of violence alleged in the declaration ; and were therefore held bad, in accord- ance with Gregory v. Hill, 8 T. R. 299, there cited. The remarks of Mr. Justice Wide, denying the right of a party dispossessed to recover possession by. force and by a breach of the peace, would, if construed by themselves, and extended beyond the case before him, allow the tenant to maintain an action of trespass against the landlord for entering the dwelling-house, in direct opposition to the judgment delivered by the same learned judge, in an- other case, between the same parties, argued at the same term and decided a year after. Sampson v. Henry, 13 Pick. 36. In the latter ease, which was an action for breaking and enter- ing the plaintiff's close, and for an assault and battery upon him, the court held that the plea of liberum tenementum was a good justification of the charge of breaking and entering the house, but not of the personal assault and battery. That de- cision, so far as it held that the landlord was not liable to an ac- tion of trespass quare elausum fregit by a tenant at sufferance for a forcible entry, has been repeatedly afflrmed. Meader v. Stone, 7 Met. 147 ; Miner v. Stevens, 1 Gush. 482, 485 ; Mason v. Holt, 1 Allen, 45 ; Curtis v. Galvin, 1 Allen, 215 ; Moore v. Mason, 1 Allen, 406. And so far as it allowed the plaintiff to recover, in such an action, damages for the incidental injury to him or to his personal property, it has teen overrtded. Barnes v. Prentice, 8 Cush. 337 ; Curtis v. Galvin, ubi supra. It has also been adjudged that a landlord, who, having peace- Sec. 2 C] WITHOUT JUDICIAL PROCEEDINGS. 65 ably entered after the termination of the tenancy, proceeds, against the tenant's opposition, to take out the windows of the house, or to forcibly eject the tenant, is not liable to an action of assault, if he uses no more force than is necessary for the purpose. Mugford V. Richardson, 6 Allen, 76; Winter v. Stevens, 9 Allen, 526. For the reason already stated, we are all of the opinion that a person who has ceased to be a tenant, or to have any law- ful occupancy, has no greater right of action when the force ex- erted against his person is contemporaneous with the landlord's forcible entry upon the premises. Our conclusion is supported by the American cases of the greatest weight. Jackson v. Farmer, 9 Wend. 201 ; Overdeer v. Lewis, 1 W. & S. 90; Kellam v. Janson, 17 Penn. St. 467 ; Steams V. Sampson, 59 Maine, 568 ; Sterling v. Warden, 51 N. H. 217. The opposing decisions are so critically and satisfactorily ex- amined in an elaborate article upon this subject in 4 Am. Law Rev. 429, that it would be superfluous to refer to them particu- larly. The tenancy of the plaintiff's husband under an oral lease was but a tenancy at will, which, by the written lease from his landlord to the defendant, and reasonable notice thereof, was determined, and he became a mere tenant at sufferance. Pratt V. Farrar, 10 Allen, 519. It being admitted that, if the defend- ants had the right to remove the plaintiffs by force, no more force was used than was reasonably necessary, this action cannot be maintained. Plaintiff nonsuit. See "Assault and Battery," Century Dig. § 14; Decennial and Am. Dig. Key No. Series, § 15, "Landlord and Tenant," Century Dig. § 1167; De- cennial and Am. Dig. Key No. Series, § 275. MOSSBLLER v. DBAVER, 106 N. C. 494, 11 S. E. 529, 8 L. R. A. 537. 1890. Entry. Eviction of Tenant ty Sufferance. Forcible Entry. [Action of trespass. Judgment against the plaintiff, and he appealed. Reversed.] Shepherd, J. The plaintiff had been in possession of the strip of land in controversy from 1884 to March, 1888. Whether he entered under the defendant Wilson, the owner, and the terms under which he entered; are disputed questions. It is admitted, however, that in March, 1887, Wilson, after giving the plaintiff notice to quit, agreed that he should remain upon the land until the succeeding October. The plaintiff continued in possession until March. 1888, when, without any further notice, he was forci- bly ejected by the defendant Deaver and a negro, who were act- ing under the direction and authority of the said Wilson. The entry was made while the plaintiff was in the actual possession Remedies — 5. 66 WITHOUT JUDICIAL PEOCEBDINGS. [Ch. 1. of liis house, and in his presence, and was done under such cir- cumstances as to constitute a forcible entry under the statute, if not, indeed, an indictable forcible trespass. His honor charged the jury that, if the plaintiff was not the tenant of Wilson, the latter, and those acting under him, "had the right to go there, and put him out by force, if no more force was used than was necessary for that purpose." Under the circumstances of this case (the plaintiff not being a recent trespasser or intruder) we cannot approve of the instruction given, as it is not only opposed to the public policy which requires the owner to use peaceful means, or resort to the courts in order to regain his possession, but is directly contrary to a statute which condemns the violent act as a criminal offense. In Dustin v. Cowdry, 23 Vt. 631, Red- field, J., said: "We entertain no doubt that such a principle of law . . did exist in England from the time of the Norman conqueror until the statute of 5 Richard II. c. 8, of 'Forcible Entry and Detainer, ' a period of nearly three hundred years ; . . . and it is certain, we think, that such a mode of re- ducing rights of action to possession is more suited to the turbu- lence and violence of those early times, when no man, whose head was of much importance to the state, felt secure of retaining it upon his shoulders for an hour, than to quiet and order and general harmony of the nineteenth century. . But as men advanced towards equality, and claimed to have their rights respected and guarantied to them, and more carefully defined this state of the law became intolerable, and was among the first to be abrogated by parliament." This was done by the statute of 5 Richard II., which is substantially enacted in North Caro- lina (see Code, § 1028) and in many other states of this Union. "A contrary rule," says Laweence, J., in Reeder v. Purdy, 41 111. 279, "befits only that condition of society in which the prin- ciple is recognized that — He may take who has the power, And he may keep who can. — If the right to use force be once admitted, it must necessarily follow as a logical sequence that so much may be used as shall be necessary to overcome resistance, even to the taking of human life." Nearly all of the authorities agree that such forcible entries on the part of the O'vmer are unlawful, but there is a great diversity as to whether an action of trespass quare clausum fregit may be maintained, and also whether the defendant can justify under the plea of liberum tenementum. Eeskinb, J., in Newton v. Ilarland, 39 E. C. L. 963, said that "it is remarkable that a question so likely to arise should never have been directly brought before any of the courts sitting in banc," until that case which was tried in 1840; and it is also worthy of remark that RuppiN, C. J., in State v. Whitfield, 8 Ired. 317, regarded it as still an open question in North Carolina. In the conflict of authorities we must adopt that rule which in our judgment rests upon the sounder reason. This is so well expressed by the Sec. 2 a.] without judicial proceedings. .67 court in Reeder v. Purely, supra, that we will reproduce the lan- guage of the learned justice who delivered the opinion. He says : ' ' The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is therefore unlawful. If unlawful, it is a trespass, and an action for the trespass must necessarily lie. . . Although the oc- cupant may maintain trespass against the owner for a forcible entry^ yet he can only recover such damages as have directly ac- crued to him from injuries done to his person or property, through the wrongful invasion of his possession, and such ex- emplary damages as the jury may (under proper instructions) think proper to give. But a person having no title to the prem- ises clearly cannot recover damages for any injury done to them by him who has title. ' ' He may, however, says the court, re- cover nominal damages in all cases of forcible entry and detain- er ; and this, in our opinion, is the correct view of the law. It is strongly sustained in Newton v. Harland, supra, though the point is not distinctly decided. In that case, Bosanquet, J., agrees with TiNDAL, C. J., in holding that, "if the act be expressly pro- hibited by statute, it must ... be illegal and void." See, also, Cooley, Torts, 323, 324. Our conclusion, therefore, is that there having been a forcible entry upon the peaceable possession of the plaintiff, he is entitled to recover nominal damages for the trespass. He is also entitled to recover damages for any injury inflicted upon his person, his furniture, his tools, and even his house, if it is a fixture only. There may also be awarded exemp- lary damage if the unlawful act be done in a wanton and reckless manner. The complaint alleges such injuries, and it was error on the part of the court in making the case turn upon the ques- tion whether the force used was necessary to the expulsion of the plaintiff, as we have seen that the forcible entry was unlaw- ful, without reference to the amount of force necessary to ef- fectuate the purpose of the plaintiff. New trial. For re-entry of landlord by force for breach of conditions in the lease, when such right is reserved in the lease, cutting off heat, water, gas, etc., for breach of conditions, see Howe v. Frith, 95 Pac. 603, 17 L. R. A. (N. S.) 672, and note; for forcible entry of landlord and evic- tion of tenant by sufferance, Whitney v. Brown, 90 Pac. 277, 11 L. R. A. (N. S.) 468, and note. See "Forcible Entry and Detainer," Century Dig. § 61; Decennial and Am. Dig. Key No. Series, § 12. See notes to the principal case in 8 L. R. A. 537. STATE V. ROSS ET AL., 49 N. C. 315. 1857. Entry. What Force May Be Used. Tenant iy Sufferance. [Indictment for forcible trespass. Verdict and judgment against the defendant, who appealed. Reversed. The facts appear in the begin- ning of the opinion.] 68 WITHOUT JUDICIAL PROCEEDINGS. [Ch. J. Pearson, J. We are told by the Attorney-General that this was treated as an indictment at common law, for the purpose of giving the state the benefit of the testimony of Hinson, who was not a competent witness in a proceeding tinder the statute. The question is, has the state made out a case indictable at common law? The indictment is strong enough, but the evidence does not sustain the allegations. The case made upon the facts is this : Hinson sold and conveyed the land to Ross, but remained on it under an alleged parol agreement, "that he was to remain there for ten years. ' ' Eoss, in company with four others, went to the land, taking with him a wagon loaded with provisions and some household furniture, for the purpose of taking possession. Hinson was present and forbade them to enter; but they did enter against his will, and began to erect a house outside of the enclosure where Hinson 's house was situated, and some of them continued there for several weeks. Ilis Honor was of the opin- ion that these facts made out an offense indictable at common law. We do not think so. To make a trespass indictable, it must be committed manu forti, in a manner which amounts to a breach of the peace; or, according to some of the cases, which would necessarily lead to a breach of the peace, if the person in possession were not over- awed by a display of force, so as to be induced to surrender and give up the possession because resistance would be useless. Un- less this degree of force is resorted to, the trespass is a mere civil injury, to be redressed by action. The courts should keep a steady eye to this distinction, be- cause individuals are under great temptation to convert civil in- juries into public wrongs, for the sake of becoming witnesses in their own cases, and of saving costs. We can see nothing in this matter, even as told by Hinson himself, that can magnify it into an indictable trespass. There was no breach of the peace — ^no display of arms or ' ' multitude of people" — ^nothing of the "pomp and circumstance of war" cal- culated to frighten a man of ordinary firmness. Hinson was not expelled and put out of possession. His dwelling-house was not invaded, and his enclosure was unmolested. It was, at most, a mere civil trespass. We do not feel at liberty to take into consideration the fact, that according to the evidence, Ross was the owner of the land, and had a right of entry — ^the alleged parol lease for ten years being void, and Hinson being in effect a mere tenant at sufference — because we find it an unsettled question, whether one who has a right of entry may not use force, if necessary to assert his right, according to the common law. It is not necessarj' for us to enter upon this debatable ground in order to dispose of this case. 1 Hawk. PI. Cr. ch. 28, p. 495. "It seems that at com- mon law, a man disseised of any land (if he could not prevail by fair means) might lawfully regain the possession thereof by force." "]3ut this indulgence of the common law, in suffer- ing persons to regain the lands they were unlawfully deprived Sec. 2 C] WITHOUT JUDICIAL PROCEEDINGS. 69 of, having been found by experience, to be very prejudieal to the public peace, it was thought necessary, by many severe laws, to restrain all persons from the use of such violent methods of doing themselves justice." Blackstone, whose book on criminal law is of the highest au- thority, following Hawkins, says: "An eighth offense against the public peace is that of forcible entry and detainer, which is committed by violently taking, or keeping possession of lands with menace, force and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away, or barred. . . But this being found very prejudicial to the public peace, it was thought necessary, by several statutes, to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they had no justice in their claim." 4 Blk. 148.^ In King v. Wilson, 8 Term. Rep. 357, the correctness of this view of the common law is questioned in the remarks which fell from the judges in delivering their opinions. But on a subse- quent day of the term they felt called on to explain, and Lord Kenyon says, "perhaps some doubt may hereafter arise respect- ing what Mr. Sergeant Hawkins says: 'that at common law the party may enter with force into that to which he has a legal title ; ' but without giving any opinion concerning that dictum one way or the other, but leaving it to be proved, or disproved, whenever that question shall arise, all we wish to say is, that our opinion, in this case, leaves that question untouched; it appear- ing by this indictment that the defendants unlawfully entered, and, therefore, the court cannot intend that they had any title." That was upon a demuirer. So, in State v. "Whitfield, 30 N. C. 315, the court throws a doabt upon the view of the common law, as laid down by Haw- kins and Blackstone, and reference is made to "Wilson's case." But the matter was before the court upon a motion in arrest of judgment, and as was done in Wilson's case, the point is left undecided. Perhaps it will be found that the authorities may be reconciled on this distinction: One having a right of entry, may, at common law, use force, provided it does not amount to an actual breach of the peace; whereas one not having a right of entry, is guilty of a trespass, indictable at common law, if he enters with a strong hand, under circumstances calculated to excite terror, although the force used does not amount to a breach of the peace. This, however, is merely a suggestion. Venire de novo. Consider with care the ruling in this case and the doctrines an- nounced therein, in comparison with the rulings and doctrines of the two cases next preceding, to-wit, Low v. Elwell, 121 Mass. 309, and Mos- seller v. Deaver, 106 N. C. 494, 11 S. E. 529; bearing In mind the dates of the decisions and also that this is a criminal prosecution,, while the others were to redress civil injuries. See State v. Whitfield, 30 N. C. 315, referred to in this case and in Mosseller v. Deaver, supra. See 70 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. "Forcible Entry and Detainer," Century Dig. §§ 192, 193; Decennial and Am. Dig. Key No. Series, § 51; "Trespass," Century Dig. § 172; Decen- nial and Am. Dig. Key No. Series, § 82. REX V. THE INHABITANTS OP CHESHUNT, 1 Barn. & Aid. 473, 476- 477. 1818. Summary Ejection of Servant. [Appeal from an order of Sessions to the court of King's Bench. Af- firmed. Two justices, by an order, removed a pauper from their parish. The pauper was, at the time, employed by the Board of Ordnance which let him live in a house, and deducted two shillings a weeii from his wages for his occupancy of the house. The Board of Ordnance had several houses which it in like manner permitted its employees to occupy upon the payment of weekly rents, but which the employee was required to vacate as soon as he quit such employment. In this instance the pau- per at first refused to surrender the house, but afterwards yielded to the demands of the Board of Ordnance. There was an appeal from the order of the justices. The question presented was: Did the occupancy of the house by the pauper, under the circumstances here stated, confer a settlement upon the pauper within the statute of 13 & 14 Chas. II, c. 12?1 Lord Ellenborough, C. J. In this ease it seems to me that the party oeupied this house as a servant only, and not in the char- acter of a tenant. It is like the case of a coachman, who fre- quently occupies a room over the stables ; but such occupation is not within the meaning of 13 and 14 Car. 2. The pauper here was divested of the tenement as soon as his service terminated. He quitted the possession reluctantly, and was succeeded by the person who succeeded him in his employment under the Board of Ordnance. All this clearly shows that he was only entitled to hold it during and for the more convenient performance of his service. If the court should hold, in this and similar cases, that the legal relation of landlord and tenant subsisted, it would be- come necessary to turn such persons out of possession by the reg- ular proceedings in ejectment; and every gentleman having twenty or thirty cottages in which his laborers resided, would be compelled on any change of their service to have recourse to such means. This would be productive of the most serious in- convenience. Upon the whole view of this ease, I think it plainly appears that the relation of landlord and tenant never did subsist here, and unless that were so, this was not an occupa- tion within 13 & 14 Car. 2, and no settlement could be gained by it. Abbott, J. If the case had stated, instead of using the words weekly rent, that the pauper lived in the house, and received 18s, and not 20s. per week wages, there would have been no doubt. And I consider that in substance it is so stated. Here the Sec. 2 C] WITHOUT JUDICIAL PROCEEDINGS. 71 relation which existed was only that of master and servant, and not that of landlord and tenant. See State v. Steele, 106 N. C. 766, inserted ante in this section. See State V. Curtis, 20 N. C. 363; State v. Hoover, 107 N. C. 795, 12 S. E. 451; Hutchins v. Durham, 118 N. C, at p. 469, 24 S. E. 723; State v. Smith, 100 N. C. 466, 6 3. E. 84, and observe the difference between this last case and the others. See Bourland v. McKnight, 96 S. W. 179, 4 L. R. A. (N. S.) 698-729, for an elaborate note covering all the cases in which the owner has, and has not, the right to summarily evict occupants, such as servants, curators of museums, light-house keepers, college profes- sors, nuns, clerks, stewards, etc. See "Landlord and Tenant," Cent. Dig. §§ 1167-1176; Decennial and Am. Dig. Key No. Series, §§ 275-277. JONES V. TOWNE, 58 N. H. 462, 42 Am. Rep. 602. 1878. Forcible Ejection from Church Pew. [The plaintiff sued the defendant in trespass for forcibly removing plaintiff from a church pew. Judgment against plaintiff, and he ap- pealed. Affirmed. The facts, so far as they relate to the question under consideration, are, that Jones persisted in occupying a church pew and in excluding therefrom the rightful occupant. At the request of Fletcher, the right- ful occupan.t, Towne forcibly ejected Jones from the pew. For this act Jones brought this action against Towne.] Claek, J. In Fisher v. Glover, 4 N. H. 380, the court, in dis- cussing the question of the rights of pew-holders, says: "It is usual to grant to individuals the exclusive use of pews and these grants give to those individuals certain rights which are to be protected. The rights thus acquired are, however, limited, and are, in our opinion, subject to the right of the society to have the meeting-house in such place as will best accommodate the whole. A reservation of this right is implied in the grant of a pew in a house of public worship. The convenience of individuals must in such eases be subject to the general convenience of the whole ; and whoever purchases a pew purchases it subject to this right of the society. ' ' The language of the court in this case, and the statement of the relative rights of the society and the pew- holders, apply equally to the right of the society to alter, or re- model, or to remove the church edifice, which was the question then under consideration. This declaration, that the rights of. pew-holders, from the nature of the property, are subject to the superior rights of the society for certain purposes, was made many years before the adoption of any statute in this state relating to the sale, alteration or repair of houses of public worship. In Howe v. Stevens, 47 Vt. 262, it is- said: "A pew-holder's right is only a right to occupy his pew during public worship ; and when the meeting-house is in such a ruinous condition that it cannot be and is not occupied for public worship, he can 72 WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. recover only nominal damages for injury to his pew." "Pew- holders, in the ordinary cases of meeting-houses or churches, built by incorporations under the statute, have only a right of occupancy to their seats, subject to the superior right of the society owning the pew. " Perrin v.Granger, 33 Yt. 101. "Pew holders have merely a qualified and usufructuary right in their pews, subject to the right of the religious society to remodel them, and to alter the internal structure of the building, or enlarge or remove it, or sell the edifice and rebuild elsewhere." Sohier v. Trinity Church, 109 Mass. 1. See also Gay v. Baker, 17 Id. 438, 9 Am. Dee. 159 ; Daniel v. Wood, 1 Pick. 102, 11 Am. Dec. 151 ; Passett V. First Parish in Boylston, 19 Pick, 361 ; 3 Kent Com. 533 ; Kimball v. Second Parish in Rowley, 24 Pick. 347. Such is the common law of New Hampshire in relation to the pew- holder's right. It is a qualified ownership, subject to the superior title included in the ownership of the house. The pew-holder cannot remove the pew, nor use it for any purpose except occupancy when the house is opened for use, and pew- tenancy is as accurate a designation of his interest as pew-owner- ship. . . . The society had the right to remove the pew, and there remained to the plaintiff only the right of compensation for its loss. No question is made but that the amount tendered by the society to the plaintiff was a sufficient compensation for the pew, and the rulings of the court upon this branch of the case were correct. By persisting in the occupation of pew No. 25, and excluding Fletcher, the rightful occupant, the plaintiff became a tres- passer, and upon his refusal to remove upon request, Fletcher, or any one acting at his request, had the right to remove him, using no more force than was necessary; and we think the ruling of the court upon this point was correct, that the exclusion of Fletcher from the occupation of his pew by the plaintiff, and his refusal to surrender it when requested, was such a disturbance and breach of the peace of the sanctuary as would justify the inter- ference of the police. Exceptions overruled. See "Religious Societies," Century Dig. §§ 168-179; Decennial and Am. Dig. Key No. Series, § 26. (d) Abatement of Nuisance. JAMES V. HAYWARD, Cro. Charles I, 184. 1631. Abatement iy Individual. Gate Across RigTiway. [Trespass for breakina; liis c1o>?e, snd pulllua: up. cutting, and casting down a gate. The defendant iustifies, because the gate was placed across the highway, and so fixed that the king's subjects could not pass without interruption by reason of the said gate, to the nuisance Sec. 2 d.] WITHOUT judicial proceedings. 73 of the king's subjects; and therefore he pulled up, cut, and cast down the said gate to use the said way. . . . The first question was, whether the erecting of a gate across an high- way, which may be opened and shut at the pleasure of the passengers, be a common nuisance in itself in the eye of the law, it being an open gate fixed upon hinges that subjects may pass the said way at their pleasure. Secondly, admitting it to be a nuisance, whether every one may pull up and cast down the said gate at their pleasure?] Hyde, Chief Justice, Jones and Whitlock (after holding the gate to be a nuisance) held; that admitting it to be a nuisance, although the usual course is to redress it by indictment, yet every person may remove the nuisance, and that the cutting of the gate was lawful; whereupon judgment was for the die- fendant. And Jones said, that, for ancient gates upon the highway, it shall be intended they are ty license from the king. See "Highways," Century Dig. §§ 432-435; Decennial and Am. Dig. Key No. Series, § 157. ARUNDEL V. M'CULLOCH, 10 Mass. 70. 1813. Abatement by Individual. Bridge Across Navigable Stream. [Trespass brought against the defendant by the inhabitants of the town of Arundel for cutting down a bridge. The case was submitted upon agreed facts. The court nonsuits the plaintiff. The town of Arundel built a bridge across a navigable stream, or, rather, arm of the sea. The stream was navigable from a point some distance above the bridge to the sea. M'Culloch removed the bridge to facilitate the passage of a vessel he had built above the bridge. In such removal he did no more damage than was necessary to effect the free passage of his vessel. A bridge had existed at this point for more than fifty years, and in 1771 the Court of Sessions located a road over the stream in question, in the direction of the bridge.] Per Curiam. It is an unquestionable principle of the common law, that all navigable waters belong to the sovereign, or, in other words, to the public ; and that no individual or corporation can appropriate them to his own use, or confine or obstruct them, so as to impair the passage over them without authority from the legislative power. It is upon this principle that so many acts of our legislature have been passed, authorizing the building of bridges over various rivers and streams within the common- wealth. In this case, no such authority has been given ; and the only claim of a right to continue the bridge rests upon the antiquity of the bridge, and the laying out of a road over the river in the year 1771. But we think that neither of these facts sanctioned the obstruction of the river, so as to prevent those who had occasion to transport vessels up and down from removing it, if necessary to a safe and convenient passage. Public rights cannot be destroyed by long continued encroachments ; at least, thb 74 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. party who claims the exercise of any right incoasistent with the free enjoyment of a public easement or privilege, must put him- self upon the ground of prescription ; unless he has a grant or some valid authority from the government, and a right by prescription does not exist in the present case. With respect to the act of the Sessions in 1771, laying out a road across the river, nothing can be inferred from it in favor of the plai]itiffs, because it was an act without authority, and void in law ; as was determined in the ease of Commonwealth v. Coombs, 2 Mass, 489. The only question remaining, then is, whether the doings of the defendant, in cutting down and removing the bridge, were justifiable on his part. And it is clear that, when any public way is unlawfully obstructed, any individual, who wants to use it in a lawful way, may remove the obstruction ; and it is settled that he may even enter upon the land of the party erecting or continuing the obstruction, for the purpose of removing it, doing as little damage as possible to the soil or buildings. Here nothing more was done than was necessary to procure a safe passage for the defendant's vessel; and we are satisfied that no trespass was thereby committed by him. Plaintiffs nonsuit. See notes to the principal case at p. 72 of 10 Mass. To same effect as the principal case see State v. Dibble, 49 N. C. 107. See Willson v. Blackbird C. M. Co., 2 Pet. 245, and Cardwell v. Am. Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423, whicli hold that a state may authorize a bridge across a navigable stream unless and until congress interferes. See "Navigable Waters," Century Dig. § 145; Decennial and Am. Dig. Key No. Series, § 26. STATE V. PARROTT, 71 N. C. 311, 17 Am. Rep. 5. 1874. Abatement by Individual. Bridge Across Navigable Stream. [Parrott was indicted for trespass in tearing down a portion of a railroad bridge. Special verdict. Judgment of acquittal. State ap- pealed. The substance of the special verdict was, that a railroad corpora- tion, chartered in North Carolina, had built a bridge over the Neuse, a navigable river, and thereby obstructed Parrott's boat in going up the river. On several previous occasions the railroad company had re- moved a portion of the bridge in crder to let Parrott's boat pass; but no such provision being made for him on this occasion, he removed, with as little injury as possible, such part of the bridge as it was nec- essary to move in order to let the boat pass. This was done in the presence of, and against the protests of, the servants of the railroad company in charge of the bridge. At the time this occurred the rail- road company was preparing a. draw for the bridge which would have been completed, so as to let boats pass, within seven days.] Reade, J. The Neuse at the place under consideration is a navigable river. Any obstruction of a navigable river is a common or public nuisance. A common or public nuisance may be abated by any person who is annoyed thereby. The railroad Sec. 2 d.] WITHOUT judicial peoceedings. 75 bridge across the Neuse obstructed the navigation thereof by the defendants' steamboat, and for that reason the defendants tore it down. It follows that the defendants are not guilty. It is not necessary to display the learning and decisions in support of these positions, although we have fully considered them, because they may be found collected in a well considered case in our own court, and we think it respectful and sufficient to sup- port our decision in this case by that. State v. Dibble, 49 N. C. 107. It is insisted, however, that while an individual cannot obstruct a navigable stream yet the state may do it on the inland streams unless congress oppose ; and here the state did authorize the railroad to build a bridge. It is true the state did authorize the railroad to build a bridge across the Neuse, but it did not authorize the bridge to be so built as to obstruct navigation, but required a draw to be in the bridge so as to permit navigation; This was not done. It is further insisted that the defendants acted wantonly, for that the railroad was preparing a draw and would have com- pleted it in a few days — about seven days. The facts are that defendants had given the railroad several months' notice to pre- pare a draw. Prior to the day in controversy, as often as the defendants' boat passed, the railroad removed a span of the bridge to permit the passage, detaining the boat but a few hours ; but on the day in question the span was not removed and the boat was detained for thirty hours, when the defendants re- moved a portion of the bridge. From these facts it appears that the obstruction was wanton and its removal necessary. Let this be certified, to the end that the judgment may be entered discharging the defendants as upon a verdict of not guilty. For a rliscussion of the right of a private individual to abate a public nuisance because of special injury — actual or threatened — to himself, see 43 Am. Rep. 21, and note. See "Navigable Waters," Cen- tury Dig. § 145; Decennial and Am. Dig. Key No. Series, § 26. BROWN v. PERKINS AND WIFE, 12 Gray, 89, 100. 1858. Abatement hy Individual. Destroying Intoxicants, &e. [Plaintiff sues in tort for breaking and entering his shop and de- stroying a barrel of vinegar and other goods. Verdict against plaintiff. Plaintiff moved for new trial, which motion was reserved for the con- sideration of the whole court. Verdict set aside and new trial ordered. The defense was, tha,t defendants were justified In breaking into the shop and destroying the liquors therein, because the plaintiff unlaw- fully kept such liquors for sale. There was evidence to the effect that about three hundred women, some of them armed with hatchets, met by appointment and marched to the plaintiff's store in a procession, broke Into it, and destroyed the spirituous liquors found there. No further damage was done. There was a statute providing that all in- 76 WITHOUT JUDICIAL PE0CEEDIN6S. [Ck. 1. toxlcating liquors kept for sale, and the vessels containing them, should he regarded and treated as common nuisances. Another statute made the same provision as to houses, buildings and places used for the ille- gal sale of !5uch liquors. The judge charged the jury, in substance, that deffcndants were justified in what they did, if they participated in the acts complained of, provided no greater force was used than was nec- essary.] Shaw, C. J. . . . Passing over all questions as to the plaintiff's case, and coming to the justification set forth in the answer, the court are of opinion, after argument, that the ruling and instructions to the jury were not correct in matter of law. 1. The court are of opinion that spirituous liquors are not, of themselves, a common nuisance, but the act of keeping them for sale, by statute, creates a nuisance ; and the only mode in which they can be lawfully destroyed is the one directed by statute, for the seizure by warrant, bringing them before a magistrate, and giving the O'wner of the property an oppor- tunity to defend his right to it. Therefore it is not lawful for any person to destroy them by way of abatement of a common nuisance, and a fortiori not lawful to use force for that purpose. 2. It is not lawful by the common law for any and all persons to abate a common nuisance, merely because it is a common nuisance, though the doctrine may have been sometimes stated in terms so general as to give countenance to this supposition. This right and power is never entrusted to individuals in general, without process of law, liy way of vindicating the puilic right: iut solely for the relief of a party whose right is obstructed by such nuisance. 3. If such were intended to be made the law by force of the statute, it would be contrary to the provisions of the Consti- tution, which directs that no man's property can be taken from him without compensation, except by the judgement of his peers or the law of the land ; and no person can be twice punished for the same offense. And it is clear that under the statutes spirit- uous liquors are property, and entitled to protection as such. The power of abatement of a public or common nuisance does not place the penal law of the Commonwealth in private hands. 4. The true theory of abatement of nuisance, is that an indi- vidual citizen may abate a private nuisance injurious to him, when he could also bring an action ; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway , and an unauthorized bridge over a navigable watercourse, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of the other parts of the commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark Sec. 2 d.] WITHOUT judicial proceedings. 77 this distinction ; but we think, upon the authority of modern cases, where the distinctions are more accurately made, and upon principle, this is the true rule of law. Lonsdale v. Nelson, 2 B. & C. 311, 312, and 3 D. & R. 566, 567 ; Mayor, etc. of Colchester v. Brooke, 7 Ad. & El. N. R. 376, 377 ; Gray v. Ayres, 7 Dana, 375 ; State V. Paul, 5 R. 1. 185. 5. As it is the use of a building, or the keeping of spirituous liquors in it, which in general constitutes the nuisance, the aba.tement consists in putting a stop to such use. 6. The keeping of a building for the sale of intoxicating liquors, if a nuisance at all, is exclusively a common nuisance; and the fact that husbands, wives, children or servants of any person do frequent such a place and get intoxicating liquor there, does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in breaking into the shop or building where it is thus sold and destroying the liquor there found, and the vessels in which it may be kept; but it can only be prosecuted as a public or common nuisance in the mode prescribed by law. Upon thase grounds, without reference to others, which may be reported in detail hereafter, the court are of opinion that the verdict for the defendants must be set aside and a new trial had. As to the constitutional question touched upon in proposition 3 of the principal case, see Daniels v. Homer, 139 N. C. 219, 51 S. B. 992. See "Intoxicating Liquors," Century Dig. § 465; Decennial and Am. Dig. Key No. Series, § 325; "Nuisance," Century Dig. § 173; Decennial and Am. Dig. Key No. Series, § 74. CAMPBELL V. RACE, 7 Gushing, 408. 1851. Turning Out of Public Road When Impassable. [Camphell sued Race for a trespass in breaking and entering his close. Race pleaded, inter alia, a right of way of necessity resulting from the impassable state of the adjoining highway. Verdict against the defend- ant. Defendant excepted, and his exceptions were sustained. The evidence tended to prove that Race left the public road and drove his team across the adjoining field of Campbell, doing no unnecessary damage and returning to the public road as soon as he had passed some natural obstructions in the public road which rendered it Impassable. The judge ruled that these facts were no defense.] BiGELOW, J. It is not controverted by the counsel for the plain- tiff, that the rule of law is well settled in England, that where a highway becomes obstructed and impassable from temporary causes, a traveler has a right to go extra viam upon adjoining lands, without being guilty of trespass. The rule is so laid down in the elementary books. 2 Bl. Com. 36 ; Woolrych on Ways, 50, 51 ; 3 Cruise Dig. 89 ; Wellheloved on "Ways, 38 ; and it is fully supported by the adjudged cases. Henn 's case, W. Jones, 296 ; 3 Salk. 182; i Saund. 323, note 3; Absor v. French, 2 Show. 28; Young V. , 1 Ld. Ray. 725 ; Taylor v. Whitehead, 2 Doug. 78 WITHOUT JUDICI.VL PEOCEEDINGS. [CIl. 1. 745 ; Bullard v. Harrison, 4 M. & S. 387, 393. Such being the ad- mitted rule of law, as settled by the English authorities, it was urged in behalf of the plaintiff in the present case, that it had never been recognized or sustained by American authors or cases. But we do not find such to be the fact. On the contrary, Mr. Dane, whose great learning and familiar acquaintance with the principles of the common law, and their practical application at an early per- iod in this commonwealth, entitle his opinion to very great weight, adopts the rule, as declared in the leading case of Taylor v. White- head, ubi supra, which he says ' ' is the latest on the point and set- tles the law." 3 Dane, Ab. 258. And so Chancellor Kent states the rule. 3 Kent, Com. 424. We are not aware of any case in which the question has been distinctly raised and adjudicated in this country ; but there are several decisions in New York, in which the rule has been incidentally recognized and treated as well set- tled law. Holmes v. Seely, 19 Wend. 507 ; Williams v. Safford, 7 Barb. 309 ; Newkirk v. Sabler, 9 Barb. 652. These authorities would seem to be quite sufficient to justify us in the recognition of the rule. But the rule itself is founded on the established prin- ciples of the common law, and is in accordance with the fixed and uniform usage of the community. Indeed, one of the strongest ar- guments in support of it is, that it has always been practised upon and acquiesced in, without objection, throughout the New England States. This accounts satisfactorily for the absence of any ad- judication upon the question, in our courts, and is a sufficient an- swer to the objection upon this ground, which was urged upon us by the learned counsel for the plaintiff. When a right has been long claimed and exercised, without denial or objection, a strong presumption is raised, that the right is well founded. The plaintiff's counsel is under a misapprehension in suppos- ing that the authorities in support of the rule rest upon any pecul- iar or exceptional principle of law. They are based upon the fa- miliar and well settled doctrine, that to justify or excuse an al- leged trespass, inevitable necessity or accident must be shown. If a traveler in a highway, by u.nexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the traveled paths, so that he cannot reach his destination without passing upon adjacent lands, he is cer- tainly under a necessity so to do. It is essential to the act to be done without which it cannot be accomplished. Serious inconveniences, to say the least, would follow, especially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. In hilly and mountainous regions, as well as in exposed places near the sea coast, severe and unforeseen storms not unfrequently over- take the traveler, and render highways suddenly impassable, so that to advance or retreat by the ordinary path, is alike impossible. In such cases, the only escape is, by turning out of the usually traveled way, and seeking an outlet over the fields adjoining the highway. If a necessity is not created, under such circumstances. Sec. 2 d.] WITHOUT JUDICIAL PROCEEDINGS. 79 sufficient to justify or excuse a traveler, it is difficult to imagine a case which would come within the admitted rule of law. To hold a party guilty of a wrongful invasion of another's rights, for passing over land adjacent to the highway, under the pressure of such a necessity, would be pushing individual rights of property to an unreasonable extent, and giving them a protection beyond that which finds sanction in the rules of law. Such a temporary and unavoidable use of private property, must be regarded as one of those incidental burdens to which all property in a civilized community is subject. In fact, the rule is sometimes justified upon the ground of public convenience and necessity. Highways being established for public service, and for the use and benefit of the whole community, a due regard for the welfare of all requires, that when temporarily obstructed, the right of travel should not be interrupted. In the words of Lord Mansfield, " it is for the gen- eral good that people should be entitled to pass in another line." It is a maxim of the common law, that where public convenience and necessity come in conflict with private right, the latter must yield to the former. A person traveling on a highivay, is in the ex- ercise of a public, and not a private right. If he is compelled, by impassable obstructions, to leave the way, and to go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls hnthin the maxim, ivhich makes public convenience and necessity paramount. It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compensation to the owner. If such an accidental, occasional and temporary use of land can be regarded as an appropriation of private property to a public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of temporary and impassable ob- structions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be as- sumed, that the right to the use of the land adjoining the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned. Prom what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in neces- sity, it must be limited by that necessity; cessante ratione, cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of ob- structions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of inevitable neces- sity or unavoidable accident, arising from sudden and recent 80 WITHOUT JUDICIAL PROCEEDINGS. [Cll. 1. causes which have occasioned temporary and impassable obstnic- tions in the highway. "What shall constitute such inevitable neces- sity or unavoidable accident, must depend upon the various cir- cumstances attending each particular case. The nature of the ob- struction in the road, the length of time during which it has ex- isted, the vicinity or distance of other public ways, the exigencies of the traveler, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive province of the jury to pass, in order to determine whether any necessity really existed, which would justify or excuse the traveler. In the case at bar, this question was wholly withdrawn from the con- sideration of the jury by the ruling of the court. It will therefore be necessary to send the case to a new trial in the court of the com- mon pleas. In Holmes v. Seely, 19 Wend, at pp. 510, 511, it is said: "In respect to a public way, if there be an obstruction so as to make the ordinary track dangerous, the traveler may go extra viam — passing as near to the origi- nal way as possible. . . This rule, generally, is not applicable to a ■private way -which becomes founderous or impassable. . . . The bet- ter opinion, however, seems to be, that in the case of a private way of necessity, a passage extra viam may be iustifled where the usual track is obstructed. There is a distinction between a private way by grant and one of necessity," in this respect. Does the law of the principal case obtain in North Carolina under existing circumstances? See State v. Brown, 109 N. C. 802, 13 S. E. 940. For when self-preservation will justify an act which under ordinary circumstances would be a tortious invasion of another's premises, see Ploof v. Putnam, 71 Atl. 188, inserted at sec. 2 (a), supra. See "Highways," Century Dig. § 291; Decennial and Am. Dig. Key No. Series, § 82. HUBBARD \. PRESTON, 90 Mich. 221, 51 N. W. 209, 15 L. R. A. 249. 1892. Abatement by Individual. Killing a Dog. [Carrie G. Hubbard brought case against Preston for killing her dog. Judgment against the defendant, and he carried the case to the supreme court by writ of error. Reversed. The facts appear in the middle of the opinion.] Long, J. On November 9, 1890, defendant shot and killed l)laintiff's dog. An action was commenced in justice court, where defendant had judgment. On appeal to the circuit court for Wayne county, the cause was tried before a jury. The only ques- tion submitted to the jury on the trial in the circuit court was the value of the dog, which the jury found to be $25, and verdict and judgment were entered for that amount. Defendant brings error. On the trial the defendant introduced testimony tending to show justification for the killing. The court permitted the testimony to be introduced, but held that it did not amount to a justification. The only question raised in this court is whether the court should Sec. 2 d.] WITHOUT judicial proceedings. 81 have submitted that branch of the case for the determination of the jury. We think the court was in error in not so doing. [Facts.] It appeared that the defendant did not keep a dog. That he lived on Bagg street, city of Detroit, and for eight days prior to the shooting he and his family had been greatly annoyed by the con- gregation of a large number of dogs about his premises, barking, quarreling, and fighting there. That they came every night upon his lawn, about his house, when it became dark (on two occasions he counted twelve dogs) , and that they kept up their cries all night at intervals. He complained to the police on three different days prior to the killing, but without any relief and he had driven them away on several nights. That the noise made by them kept the members of his family awake, and seriously annoyed them. He did not know the owners. On the night he killed plaintiff's dog, he drove them away twice, but they returned. He could not get near them, but they would return. That they became an intoler- able nuisance, and finally, about eight o'clock in the evening, he went out with his revolver and shot among them, while on his lawn. He did not know who owned any of them, and did not shoot at any particular dog. The defendant had a right to protect his family from such nuisance ; and it was a question for the jury whether he used such means as were reasonable and necessary, under the cir- cumstances, to rid himself of it. The judgment must be reversed, with costs, and a new trial ordered. For a valuable note on the subject of killing dogs — unlicensed, oarking, howling, dangerous, trespassing, and predatory dogs; dogs that worry, attack, and injure sheep or other animals — as well as the criminal or negligent killing of dogs, and the killing of dogs by mistake, see note to the principal case in 15 L. R. A. 249. See also Simmonds v. Holmes, 31 Conn. 121, 23 Atl. 702, 81 Am. Dec. 221, 15 L. R. A. 253 and briefs there printed; for the law as to killing domestic animals other than dogs, see Ross v. D. Levee Board, 103 S. W. 380, 21 L. R. A. (N. S.) 699, and note. See "Animals," Century Dig. §§ 115-122; Decennial and Am. Dig. Key No. Series, § 44. REX V. ROSEWELL, 2 Salkeld, 459. 1699. Abating a Private Nuisance. If H builds a house so near mine that it stops my lights or shoots the water upon my house, or is in any other way a nuisance to me, I may enter upon the owner's soil arid pull it down; and for this reason only a small fine was set upon the defendant in an indict- ment for a riot in pulling down some part of the house, it being a nuisance to his lights, and the right found for him in an action for stopping his lights. See "Adjoining Landowners," Century Dig. §§ 74-84; Decennial and Am. Dig. Key No. Series, § 10. Remedies — 6. 82 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. HEATH V. WILLIAMS, 25 Me. 209, Pinch's Cases 120. 1845. Entry Upon Another's Land to Ahate a Private Nuisance. [The defendant entered upon plaintiff's land and tore out an artificial obstruction placed in a running stream, which obstruction caused the water to be ponded back upon defendant's mill wheel to his injury. The question presented is: Did the defendant have a right to enter upon plaintiff's land and remove the obstruction? Only that portion of the opinion which bears upon this question is here inserted.] Shepley, J. . . A riparian proprietor who owns both banks of a stream below his mill has a right to have the water flow in its natural current without any obstruction injurious to him, over the whole extent of his land, unless his rights have been im- paired by grant, license, or an adverse appropriation for more than twenty years. . . The common law would afford him sufficient protection against the flow of water back upon his own land to the injury of his mill by the acts of another. Failing to obtain relief from the continuance of such an injury without it, he might lawfully enter upon the land of the plaintiff and remove, so far as necessary, the obstruction which occasioned it. For further discussion of private abatement of private nuisances and entry upon another's land for that purpose, see Bishop Non-Cont. Law, ss. 430, 431; 29 Cyc. 1214-1218. See "Waters and Water Courses," Cen- tury Dig. §§ 42-49, 206; Decennial and Am. Dig. Key No. Series, §§ 58, 174. GRANDONA v. LOVDAL, 70 Cal.161, 11 Pac. 623, Finch's Cases, 99. 1886. Abatement hy Individual. Projecting Limbs and Roots of Trees. [The action was brought by Grandona against Lovdal for damages caused to plaintiff by trees planted In, or close to, his line by defendant. The case went off in the supreme court upon a. question of pleading not material to the subject under consideration.] McKiNSTRY, J. . . "Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off or have his action for damages, and an abatement of the nuisance against the owner or occupant of the land on which they grow : but he may not cut down tlie tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil." Wood on Nuisance, s. 112, citing Commonwealth v. Blais- dell, 107 IVlass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390. So, it would seem, he may abate the roots projecting into his soil ; at least, if he has suffered actual damage thereby. . . See 55 N. W. 989, 21 L. R. A. 729; 32 Atl. 939, 29 L. R. A." 582; 29 S. E. 685, 40 L. R. A. 626; Bish. Non-Cont. Law, § 830; 8 Vermont, 115, Finch's Cases, 154; 48 N. Y. 201, Finch's Cases, 97. See "Adjoining Landowners," Century Dig. § 47; Decennial and Am. Dig. Key No. Series, § 5. Sec. 2 d] WITHOUT JUDICIAL PROCEEDINGS. 83 BARKLBY v. WILCOX, 86 N. Y. 140, 144-148, 40 Am. Rep. 519. 1881. Defense of Land by Obstructing and Diverting Water. [Wilcox sued Barkley for damages resulting from Barkley's obstruct- ing the passage of surface water across Barkley's land and thereby caus- ing Wilcox's cellar to be flooded. Judgment against Wilcox, who aj)- pealed. Affirmed. Wilcox and Barkley owned adjoining lots fronting on a street, but be- yond the corporate limits of a village. By the natural elevations and depressions of the earth's surface the surface water — from rains and melting snows — would descend from different directions and accumulate in the street in front of Wilcox's lot and sometimes back up upon it. When there was an unusual rainfall the water accumulating therefrom would naturally flow across Barkley's lot and the lands of other pro- prietors until it reaxhed the Neversink river. Barkley built a house upon his lot and filled up and graded his lot — raising it more than a foot. As a consequence of such filling up and grading, the surface water, accumulated from rains and snows, was backed upon Wilcox's lot to his serious damage. There was no natural watercourse — i. e. natural stream flowing in a defined bed or channel, with banks and sides, and having permanent sources of supply — across Barkley's lot.l Andrews, J. Whether, when the premises of adjoin- ing owners are so situated that surface water falling upon one tenement naturally descends to and passes over the other, the inci- dents of a watercourse apply to and govern the rights of the re- spective parties, so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his own land, obstruct the flow of such water to the injury of the owner above, is the question to be determined in this ease. This question does not seem to have been authoritatively decided in this state. It was referred to by Denio, C. J., in Goodale v. Tuttle, 29 N. Y. 467, where he said : ' ' And in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the well-settled rule, that the owner of land has full dominion over the whole space above and below the surface." . . The question has been consid- ered by courts in other states, and has been decided in different ways. In some, the doctrine of the civil law has been adopted as the rule of decision. By that law the right of drainage of surface wa- ters as between owners of adjacent lands of different elevations, is governed by the law of nature — the lower proprietor is bound to re- ceive the waters which naturally flow from the estate above, pro- vided the industry of man has not created or increased the servi- tude. (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Domat, Cush. Ed. 616 ; Code Napoleon, art. 640; Code Louisiana, art. 656.) The courts of Pennsylvania, Illinois, California and Louisianna have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri. . On the other hand, the courts of Massachusetts, New Jersey, New Hampshire and Wisconsin 84 WITHOUT JUDICIAL PROCEEDINGS. [Cll. 1. have rejected the doctrine of the civil law, and hold that the re- lation of dominant and servient tenements does not hy the common laiv apply between adjoining lands of diiiferent owners, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land discharged over the land of the lower proprietor, although it naturally finds its way there ; and that the lower proprietor may lawfully, for the improvement of his estate and in the course of good husbandry, or to mate erections thereon, fill up the low places in his land, al- though by so doing he obstructs or prevents the siirface water from passing thereon from the premises above, to the injury of the upper proprietor. . . It may be observed that in Pennsyl- vania, house lots in towns and cities seem to be regarded as not sub- ject to the rule declared in the other cases in that state, in respect to surface drainage. . . . Professor Washburn states, that the prevailing doctrine seems to be that, if for the purposes of improv- ing and cultivating his land, a land owner raises or fills it, so that the water which falls in rain or snow upon an adjacent owner's land, and which formerly flowed on to the first-mentioned parcel, is prevented from so doing, to the injury of the adjacent parcel, the owner of the latter is without remedy, since the other party has done no more than he had a legal right to do. Wash, on Ease- ments (2 ed.) 431. Upon this state of the authorities, we are at liberty to adopt such rule on the subject as we may deem most consonant with the de- mands of justice, having in view on the one hand individual rights, and on the other interests of society at large. Upon consideration of the question, we are of the opinion that the rule stated by Denio. C. J., in Groodale v. Tuttle, is the one best adapted to our condition and accords with public policy, while at the same time it does not deprive the owner of the upper tenement of any legal right of property. The maxim, aqua currit et debet currere ut currere solebat, expresses the general law which governs the rights of owners of property on watercoursas. The owners of land on a watercourse are not owners of the water which flows in it but each owner is entitled, by virtue of his ownership of the soil, to the rea- sonable use of the water as it passes his premises, for domestic and other uses, not inconsistent with a like reasonable use of the stream by the owners above and below him. Such use is incident to his right of property in the soil. But he cannot divert or unreasonably obstruct the passage of the water, to the injury of other proprietors. These familiar principles are founded upon the most obvious dic- tates of natural justice and public policy. The existence of streams is a permanent provision of nature, open to observation by every purchaser of land through which they pass. The multiplied uses to which, in civilized society, the water of rivers and streams is ap- plied, and the wide injury which may result from an unreasonable interference with the order of nature, forbid an exclusive appro- priation by flny individual, of the water in a natural watercourse. or any vinreasonable interruption in the flow. It is said, that the Sec. 2 d.] WITHOUT judicial proceedings. 85 same principle of following the order of nature should be applied between coterminous proprietors, in determining the right of mere surface drainage. But it is to be observed, that the law has always recognized a wide distinction between the right of an owner to deal with surface water falling or collecting on his laud, and his right in the water of a natural watercourse. In such [surface] water, before it leaves his land and becomes part of a definite watercourse, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use or get rid of it in any way he can, provided only that he does not cast it by drains or ditches upon the land of his neighbor ; and he may do this, although by so doing he prevents the water reaching a natural watercourse, as it formerly did, thereby occasioning injury to mill-owners or other proprietors on the stream. So also he may, by digging on his own land, intercept the percolating waters which supply his neighbor's spring. Such consequential injury gives no right of action. Acton v. Blimdell, 12 M. & W. 324 ; Rawstron v. Taylor, ] ] Exch. 369 ; Phelps v. Nolen, 72 N. Y. 39. Now in these cases there is an interference with natural laws ; but those laws are to be construed in connection with social laws and the laws of property. The interference in these cases with natural laws, is justified, be- cause the general law of society is, that the owner of land has full dominion over what is above, upon, or below the surface, and the owner, in doing the acts supposed, is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his in- jury. This is alike the rule of the civil and common law. Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Noonan v. City of Albany, 79 N. Y. 475 ; Miller v. Laubach, 47 Penn. St. 154. But it does not fol- low, we think, that the owner of land, which is so situated that the surface waters from the lands above naturally descend upon and pass over it, may not, in good faith and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching it, and is retained upon the lands above. There is a manifest distinction between casting water upon another's land, and preventing the flow of surface water upon your own. Society has an interest in the cultivation and improv- ment of lands, and in the reclamation of waste lands. It is also for the public interest that improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in respect to surface drainage would, we think, place undue restriction upon industry and enterprise, and the control by an owner of his property. Of course, in some cases the opposite principle may cause injury to the upper pro- prietor. But the question should, we think, be determined largely upon consideration of public policy and general utility. Which rule will, on the whole, best subserve the public interests, and is most reasonable in practice? For the reasons stated, we think the rule of the civil law shoidd not ie adapted in this 86 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. state. The case before us is an illustration of the impolicy of fol- lowing it. Several house lots (substantially village lots), are crossed by the depression. They must remain unimproved, if the right claimed by the plaintiff exists. It is better, we think, to establish a rule which will permit the reclamation and improve- ment of low and waste lands, than one which will impose upon them a perpetual servitude, for the purpose of drainage, for the benefit of upper proprietors. We do not intend to say that there may not be eases which, owing to special conditions and circum- stances, should be exceptions to the general rule declared. But this case is within it, and we think the judgment below should be affirmed. In Porter v. Durham, 74 N. C. at p. 779, It is said: "It has been held that an owner of lower land is obliged to receive upon it the surface water which falls on adjoining higher land, and which naturally flows on the lower land. Of course when the water reaches his land, the lower owner can collect it in a ditch and carry it off to a proper outlet so that it will not damage him. He cannot, however, raise any dyke or barrier by which it will be intercepted a,nd throxon back on the land of the higher owner. While the higher owner is entitled to this service, he cannot artificially increase the natural quantity of water, or change its natural manner of flow, by collecting it in a ditch and discharging it upon the servient land at a different place, or in a different manner, from its natural discharge. These elementary principles being founded on reason and equity are common to both the civil and the common law, and are impliedly recognized by our acts of assembly respecting drain- ing." See further for the position of the North Carolina courts upon the questions discussed in the principal case, Davis v. Smith, 141 N. C. 108, 53 S. E. 745; Greenwood v. R. R., 144 N. C. 446, 57 S. B. 157; Clark v. Guano Co., 144 N. C. 64, 56 S. B. 858, and numerous cases there cited, also Briscoe v. Parker, 145 N. C. 14, 58 S. B. 443. These cases fully sus- tain the above quotation from Porter v. Durham. However, in R. R. v. Wicker, 74 N. C. at p. 228, it is said: "Every one has a right to build on or otherwise improve his land, subject to certain equitable limitations which it is not necessai-y now to state. If, as an incidental consequence of this lawful use, the flow of the surface water from adjoining land is obstructed, the owner of such land cannot recover damages as for a tort." See Wills V. Babb, 222 III. 95, 78 N. E. 42, 6 L. R. A. (N. S.). 136, and note (right to embank against water turned out of a running stream); 25 L. R. A. 527, and note (surface water defined); 65 lb. 250, and note (rights and duties of municipalities with respect to surface water); 21 lb. 593, and note (rights as to the flow of surface water. This note cites the principal case and many others). Prom a letter to the editors from Mr. H. P. Pamham, managing editor of L. R. A., we quote, by permis- sion: "By an examination of the note in 21 L. R. A. 593, we think you will discover that the case to which you refer in 86 N. Y. 140, represents the minority rule, and is opposed to both the common and civil law." For a discussion of the civil and the common-law rights with respect to surface water, see Parnham on Waters, § 889. See 30 Am. & Eng. Enc. L. 326-347, for a full discussion of the law of surface water. It is there stated that what is known as the "common law rule" on the subject discussed in the principal case, originated in Massachusetts, and that the English courts do not appear to have had the subject before them for consideration (p. 331, end of note 3). The majority of the states seem to have adopted the "common law rule" (see pp. 326, note 7, 330, note 3; and see Gould on Waters, §§ 265, 266). The two rules are fully treated in 30 Am. & Eng. Enc. L. at pp. 326 et seQ. and 330 et seq. Sec. 2 e.] without judicjal, proceedings. 87 As to the respective rights and remedies of adjacent proprietors with regard to percolating waters, see 19 L. R. A. 92, 64 lb. 236, 17 lb. (N. S.) 650, and notes (giving the older rule) and 23 lb. (N. S.) 331, and note (giving the modern rule). See "Waters and Water Courses," Century Dig. §§ 128-136; Decennial and Am. Dig. Key No. Series, §§ 118-121, 170. (e) Distress for Rent. GIVEN V. BLANN, 3 Blackford, 64. 1832. Nature and Extent of the Remedy. What May Be Taken. [Given brought replevin against Blann for some shocks of wheat. Judgment against plaintiff. Plaintiff took the case to the supreme court by writ of error. Reversed, Given owed Blann the rent of a parcel of land, which rent being past due and unpaid, Blann seized the wheat in controversy — the wheat being at the time in shocks on the demised land. These facts were set up by way of avowry and plaintiff demurred thereto. The court overruled thig demurrer. In short, Blann distrained the wheat for rent due.] Stevens, J. . . . The first point is, did tlie court err in overruling the demurrer to the avowry 1 The power of distraining for rent is, to say the least of it, tyran- nical, and may be made an engine of oppression, and is almost ir- reconcilable with the spirit of our laws and institutions. It is an extraordinary remedy, and is limited to the strict letter of the law, confined stricly to the authority given, and nothing can be taken by implication. It is a proceeding by which a landlord is permitted to seize and dispose of the property of his tenant, with- out his consent, and without the assent of his judges or peers, and, as Sir Edward Coke expresses it, a proceeding in which he is a judge in his own cause, contrary to the solid maxim of common law; and therefore an avowry must be as certain, direct and spe- cial, in both form and substance, as a plea of justification in an action of trespass. The first objection raised is, that the property taken as a distress is not distrainable. The common law imposes several benign restric- tions on this summary authority of distress. It forbids the dis- training of many articles, such as : First, things fixed to the free- hold or which savor of the realty, as fixtures, growing crops, etc. ; 2d, things of a perishable nature, as milk. etc. ; 3d, things that can- not be removed wathout sustaining some injury, and which can- not be returned in the same plight in which they were when taken, as sheaves and shocks of corn ; 4th, things delivered to a person exercising a trade, to be worked up or used in the way of his trade ; 5th, beasts of the plow and implements of husbandry ; and 6th, instruments of a man's trade. 3 Bl. Com. 9, 10; 3 Kent, Com. 382; Simpson v. Hartopp, Willes, 512. The two last-mentioned exemptions are only exempt sub modo, that is, upon the supposi- tion that there is a .sufficiency of other property to be distrained. 88 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. The property distrained in this case, is sheaves and shocks of com in the field, which are exempt from distress by the common law, and, if our statute does not authorize such a distress, the proceed- ings are illegal and void. It has not been contended that the statute expressly authorizes such a distress, but that it has taken away the reason of the com- mon law, and, therefore, the law is virtually, as to that, repealed ; that, at common law, the distress was taken as a pledge, and was held until the tenant paid the rent or replevied the property; and, tlierefore, sheaves and shocks of corn could not be taken, because the removal and the return would injure them; but, hy our stat- ute, the distress is to be absolutely sold, unless the rent is paid or the property replevied; and therefore the reason of the common law cannot apply. To this argument it may be correctly answered, that the reason of the common law remains unimpaired ; the right of the tenant to pay the rent or to replevy the distress, remains in full force; no alteration as to that is made, only the time is limited to a few days ; but if he does pay the rent or replevy the the property within the time limited, it must be returned to him without damage, and in the same plight it was in when seized; and, in the case of sheaves and shocks of corn, that is impossible, and therefore they certainly remain as things forbidden to be taken as a distress. It may be further answered that nothing can bo taken by implication, and that, unless the statute expressly authorizes the distress, it is illegal. . . If this view of the ease, and the law governing it, is correct, no doubt can exist as to the illegality of the distress. The property seized was not distrainable, and the demurrer to the avowry ought to have been sustained. Distress for rent is a remedy whicli landlords have never enjoyed in North Carolina. Howland v. Forlaw, 108 N. C. top p. 570, 13 S. B. 173; Deaver v. Rice, 20 N. C. at p. 568. For distress warrant to force payment for use of property other than land, see Wickham v. Richmond S. & I. Co., 57 S. E. 647, 11 L. R. A. (N. S.) 836, and note. See "Landlord and Ten- ant," Century Dig. § 1083; Decennial and Am. Dig. Key No. Series, § 269. Sec. 3. By Agreement op Parties. (a) Accord and Satisfaction. SIEBER V. AMUNSON, 78 Wis. 679, 682, 47 N. W. 1126. 1891. Definition and Essentials of Accord and Satisfaction. fSie'^er sued Amunson (or damages resulting from the alleged negli- genoe, etc., of Amunson in colliding with a sleigh in which the plaintiff was riding. Verdict and judgment against the defendant, and he ap- peal^-d. Affirmed. Amimsrn, Sieverson, and Narracong were riding in a sled. Amunson wa^ paitiqlly drunk, and, by his yelling, etc., caused the team to run away and in^'ure the plaintiff. Amunson pleaded as a defense that the (b'ec. 3 a.] WITHOUT judicial proceedings. 89 plaintiff had received compensation, for all of her injuries, from Siever- son and in full settlement thereof. There was no proof that Sieverson was a joint tort feasor with Amun- son in causing plaintiff's injury; but it was shown that plaintiffs attor- ney, Mr. Perry, in a conversation with Sieverson, stated that the plaintiff was very poor and asked Sieverson if he could help her — stating at the time that he was satisfied that Sieverson was not in fault in the matter of plaintiff's injury. Narracong, who was present at this interview, handed the plaintiff's attorney five dollars for her, and Sieverson said he would help her if he were able. Narracong then proposed that he pay plaintiff fifty dollars which he owed Sieverson. When this proposition was made to Sieverson, he seemed to assent thereto. Plaintiff knew nothing about this proposition or of what took place at this interview.] Orton, J. . . . Narracong, as a witness, speaks of this transaction as a settlement, but it could not have been a settlement or an accord and satisfaction, for Mr. Perry not only had not charged and did not charge Sieverson with being guilty of any wrong or with any liability on account of the plaintiff's injury, but expressly told him that he did not believe him to be liable or to have been in any fault. There was no consideration what- ever for the promise to pay anything to the plaintiff or for her benefit, and it was void for that reason, if not for having been made on the Sabbath. The court instructed the jury that there was no accord and satisfaction, because there was no satisfaction. As an abstract proposition this was correct. The legal meaning of an accord is that "it is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account. " "It must be advanta- geous to the creditor, and he must receive an actual benefit there- from." "Everything must be done which the party undertakes to do." 2 Greenl. Ev. 28; 3 Bl. Comm. 15; Bouv. Law Diet. tit. "Accord," and cases cited; Ogilvie v. Hallam, 58 Iowa, 714, 12 N. "W". Rep. 730; Evans v. Wells, 22 Wend. 325. "An accord not followed by a satisfaction is no bar. ' ' Palmer v. Yager, 20 Wis. 91; Barnes v. Lloyd, 1 How. (Miss.) 585. "To constitute a good accord and satisfaction, it must be accepted as such." This was neither an accord and satisfaction, nor a settlement of the matter, either in fact or in law. But, if the $50 had been actually received by the plaintiff, it would have been a mere gratuity. Mr. Perry no doubt understood the effect of the transaction to be a mere act of charity or benevolence, or a loan. The idea of an accord and satisfaction of the cause of action in this suit probably never en- tered his mind. As an attorney of the plaintiff in this action, he had no power, unless specially authorized, to make any contract or do anything by which the action would be barred. We find no error in the record. The judgment of the circuit court is affirmed. See Broom's Legal Maxims, 666, 667; 1 Am. & Eng. Enc. Law, 411; Mcintosh Cont. 511, 584, and note at 513; Harshaw v. McKesson, 65 N. C. 688. Formerly the rule was, that no sealed executory contract for a debt could be discharged by an unsealed contract, because of the maxim endem ligamine quo ligatur, etc.; but that rule never did extend to unliquidated 90 WITHOLT JUDICIAL PROCEEDINGS. [67t. 1. damages for breach of a sealed contract. Broom's L. Maxims, 666. The maxim eo ligamiiie, etc., is of little, if any, force in Nortli Carolina at this time. Adams v. Battle, 125 N. C. 152, 34 S. E. 245; May v. Getty, 140 N. C. 310, 53 S. E. 75. See also B^iller v. Kemp, 20 L. R. A. 785; Mel- roy V. Kemmerer, 67 AU. 699, 11 L. R. A. (N. S.) 1018; Can Fish Co. v. McShane, 114 N. W. 594, 14 L. R. A. (N. S.) 443; Farnsworth v. Wilbur, 95 Pac. 642, 19 L. R. A. (N. S.) 320; Ex parte Zeigler, 64 S. E. 513, 21 L. R. A. (N. S.) 1005; which cases and the valuable notes thereto in the L. R. A. give practically all the law on the subject of accord and satis- faction and compromise by the payment and acceptance, or agreement to accept, a smaller sum in discharge of a contract to pay a greater. For the distinction between a novation and a compromise or executory accord, see Sandman v. Finn, 78 N. E. 175, 12 L. R. A. (N. S.) 1134, and note. See "Accord and Satisfaction," Century Dig. §§ 1-45; Decennial and Am. Dig. Key No. Series, §§ 1-5. (6) Arbitration and Award. TITUS V. SCANTLING, 4 Blackford, 89. 1835. Submission to Arbitration. Arbitration Bonds. Enforcing Awards. [Scantling and wife sued Titus, in debt, on an arbitration bond made to Mrs. Scantling while sole. Judgment against Titus, and he appealed. Affirmed. The declaration set out a bond, made by Titus, conditioned to perform the award of certain arbitrators to whom was submitted a matter of dif- ference between Titus and Sarah McAfee, afterwards Mrs. Scantling. The bond contained no provision that the submission and award should be u rule of court. The bond was made in Ohio. Titus pleaded, inter alia, that the bond was void under the laws of Ohio, because it failed to provide that the submission might be made a rule of court. There was a demurrer to this plea, and the demurrer was sustained. The only error assigned is the sustaining of the demurrer, and the question presented is: Is an arbitration bond void under the Ohio statute because there is no clause in the bond making the submission a rule of court?] Blackford, J. To determine tliis question, it is neces- sary to advert, for a moment, to the history of arbitrations. They are, as every one knows, of eonamon law origin. In the earliest periods of the history of that law, we find that any persons, though no suit was pending between them, might agree to submit their matters of difference to arbitrators; and that their agreement for this purpose might be without any writing, or by a writing without seal, or might be by mutual bonds. If the agreement was by bond, and either party refused to comply with the award, his opponent might sue him on the award or on the bond. 2 Saund. 61, notes. We find in the old English books of Reports, previously to any statute on the subject, frequent suits on arbitration bonds. These bonds contained no agreement that the submission should be made ii rule of court. The insertion of such an agreement in the bond, originated with the English statute of 9th and 10th of Will. 3. The object of that statute was to give to persons, p^ibmitting their disputes to arbitration where no -suit was pending, the same remedy Sec. 3 h.] WITHOUT JUDICIAl. PROCBEDINns. 91 that the common law gives in cases referred after the commence- ment of a suit. Lucas v. Wilson, 2 Burr. 701. The defaulting party, where the submission is made a rule of court, becomes liable to an attachment. The statute thus gives a new remedy, when the bond contains an agreement for the rule; but, at the same time, it leaves the validity of the common law bonds, not con- taining such an agreement, entirely unimpaired. All the differ- ence is, that on the statutory bond the rule of court may be ob- tained, but on the common law bond it cannot. The party, in the latter case, is limited to the old remedy by an action on the award or on the bond. These observations respecting the English law of arbitration, apply to the laws of Ohio on the subject. We are bound to pre- sume that the common law, so far as it does not interfere with her statutes, is in force in Ohio. That point was so decided by this court, in the case of Stout v. Wood, 1 Blkfd. 70. Arbitration bonds, therefore, in the common law form, without any agreement respect- ing a rule of court, are valid in the state of Ohio by the common law, unless their validity is impaired by the statute law of that state. The defendant below has not informed us in his plea of any other statute of Ohio on the sub.ject, than the one to which we have referred. That statute is, substantially, as to the matter in ques- tion, the same with the English statute of Will. 3; and it conse- quently doas not, as is shown by our previous remarks, affect the legality of arbitration bonds made, like the one now before us, in the common law form. The obligees are excluded, by the form of the bond, from the summary remedy by attachment under a rule of court, but that does not prove the bond to be void, or that an action of debt may not be maintained on it. The statute on arbitrations in Indiana, is, as to the matter under consideration, the same wth the Ohio statute ; and we think it is clear that this arbitration bond, had it been executed here with a view to our laws, might have been enforced in 5ur courts as a com- mon law bond, by an action of debt. Our opinion for these reasons is, that the obligor's plea, that the bond in question is void by the laws of Ohio where it was executed, cannot be supported. The bond is valid, and the demurrer to this plea was correctly sustained. Per Curiam. This judgment is affirmed. See Dickerson v. Hayes, 4 Blackford, at mid. pp. 46 to 49, for the en forcement of awards made in actions pending in court and of awards in controversies not pending in court, under the common law practice and under statutes of England and of this country. See "Arbitration and Award," Century Dig. § 59; Decennial and Am. Dig. Key No. Series, § 14. KILL V. HOLLISTBR, 1 Wilson, 129. 1746. What May Be Submitted to Arbitration. This is an action upon a policy of insurance, wherein a clause was inserted, that in case of any loss or dispute about the policy it 92 WITHOUT JUDICIAL PROCEEDINGS. [Ch. 1. should be referred to arbitration, and the plaintiff avers in his declaration that there has been no reference; upon the trial at Guildhall the point was reserved for the consideration of the court, whether this action well laid before a reference had been, and by the whole court if there had been a reference depending, or made and determined, it might have been a bar, but the agreement oj the parties cannot oust this court, and as no reference has been nor any is depending, the action is well brought, and the plaintiff must have judgment. Rules of a board of trade requiring arbitration, see Pacaud v. Wait, 75 N. B. 779, 2 L. R. A. (N. S.) 672, and note. See "Insurance," Century Dig. §§ 1522-1528; Decennial and Am. Dig. Key No. Series, § 612. MANUFACTURING CO. v. ASSURANCE CO., 106 N. C. 28, 46-48, 10 S. E. 1057. 1890. Talidity of Agreement to Arbitrate. Insurance Clause. [Action upon an insurance policy to recover for loss by flre. Verdict and judgment against defendant, who appealed. Reversed. The facts appear in the beginning of the opinion.] Shepherd, J. The defendant relies upon several defenses, but the only one necessary to be considered in order to dispose of this appeal is founded upon the following clause in the policy of in- surance, which is the basis of this action: [The clause in the pol- icy was to the effect that any differences arising as to the amount of loss or damage should be submitted to arbitration, if either party should make a written request to that effect. Upon such request being made, no action could be maintained on the policy until after an award fixing the amount of the damage, but not the liability of the insurance company under its, policy.] It is, we think, well settled that such a provision in a contract of insurance is not against public policy, and that it will be upheld by the courts, in so far as it provides for the submission to arbi- tration of the amount of loss or damage sustained by the assured. A policy of insurance, precisely similar to the one under consid- eration, was declared to be valid by the Supreme Court of New Jersey, in the ease of L. L. & G. Ins. Co. v. Wolff, 17 Ins. Law Journal, 714; 14 Atl. Rep. 561, and this decision is abundantly sustained by the highest authority. "Agreements for determining only the amount to be recovered by arbitration are valid, and the determination by arbitration of the amount of damages to be recovered, or the time of payment, may lawfully'' be made a condition precedent." Scott v. Avery. 5 n. L. Gas. 811 ; 2 Addison, Cont. 294 ; Morse on Arbitration and Award. 9.3 ; May on Insurance, 493 ; Perkins v. U. S. Electric Light Co., 16 Fed. Rep. 513; Gauche v. London & Lancashire Ins. Co., 10 Fed. Rep. 347; Carroll v. G. F. Ins. Co., 13 Pac. Rep. (Cal.), €63. In Russell v. Pellegrini, 38 B. L. & E. 101, Lord Campbell said: Sec. 3 }}.] WITHOUT JUDICIAL PROCEEDINGS. 93 "When a cause of action has arisen, the courts cannot be ousted of their jurisdiction," but added that "parties may come to agree- ment that there shall be no cause of action until their differences have been referred to arbitration. ' ' "Both sides admit that it is not unlawful for parties to agree to impose a condition precedent, with I'espect to the mode of set- tling ihe amount of damage, or the time of paying it, or any mat- ters of that kind, which do not go to the root of the action. On the other hand, it is conceded that any agreement which is to prevent the suffering party from coming into a court of law — or, in other words, ivhich ousts the courts of their jurisdiction — cannot be sup- ported." Edwards v. The Aberayron Mutual Ship Ins. Co. (lim- ited), 1 Q. B. Div. 593 (1875). "I take the law as settled by the highest authority — the House of Lords — to be this : There are two cases where such a plea aa the present is successful — first, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought till there has been an ar- bitration, or that arbitration shall be a condition precedent to the right of action." Dawson v. Fitzsrerald, 1 Exchequer Div. 260 (1876). "Since the case of Scott v. Averj', in the House of Lords, the contention that such a clause is bad, as an attempt to oust the courts of jurisdiction, may be passed by." See also Porter's Laws of Insurance, 210, and Gasser v. Sun Fire Office (Supreme Court Minn. 1890) , Insurance L. J. 44 N. W. 252. The contention of the defendant company is, that a difference arose as to the amount of damage to the engine, boilers, etc., and that defendant made a written request of the plaintiff that the said difference should be submitted to, and determined by, arbi- trators, and in accordance with the terms of the policy, and that the plaintiff, without legal excuse, refused to comply with said request. The submission to arbitration upon the ^ATitten request of the defendant is clearly a. condition precedent to the right of ac- tion. . . . Reversed. [The remainder of the opinion is omitted because not necessary to the presentation of the point under con- sideration here — i. e., the validity of the "arbitration clause" in a policy.] See Grady v. Home F. & M. Ins. Co., 63 Atl. 173, 4 L. R. A. (N. S.) 288, and note; Pres. D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y. 250; Mcintosh Cont. 368, and note. See 23 L. R. A. (N. S.) 317, and note (effect of rul- ing of arbitrator as to ttie performance of a building contract). For practice in causes submitted to arbitrators, selection of umpire, notice to parties, setting aside the award, etc., see Bray v. Staples, 63 S. E. 780, 19 L. R. A. (N. S.) 696, and note. See "Insurance," Century Dig. | 1420; Decennial and Am. Dig. Key No. Series, § 567. 94 WITHOUT JUDICIAL PROCEEDINGS. [Gh. 1. KEENER V. GOODSON, 89 N. C. 273. 1883. Arbitration and Reference Distinguished. Duty of Arbitrators. Enforc- ing Award. [Keener sued Goodson in ejectment. Verdict and judgment against defendant, and he appealed. Affirmed. Plaintiff claimed title under an execution sale. The validity of such execution sale depended upon whether or not a judgment, entered upon the award of certain arbitrators, was valid. In an action duly pending In the Superior Court an order was made, by compromise, referring the controversy to arbitrators, "their award or a majority of them to be a rule of court." The arbitrators filed their award stating that they had heard all the testimony produced; examined "all the books and papers;" investigated the case; and that in their opinion the defendant owed the plaintiffs a specified sum. Upon the docket was a memorandum of judg- ment. The award did not contain any findings of fact. Only so much of the case and opinion is here produced as bears upon the question under consideration.] Ashe, J. The first contenton of defendant was, that the record of the judgment produced in evidence did not show a valid judg- ment, and that the sale thereunder was void, and the plaintiff acquired no title to the land by the sheriff's deed. The counsel in- sisted that the judgment upon the award was interlocutory, and that the award itself was defective, becawse the arbitrators did not find the facts. The coiuisel argued these points as if the order of reference was under the Code of Civil Procedure; if it had been so, there would have been a good deal of force in his position ; but he seems to have entirely overlooked the distinction between a reference under the Code and a reference to arbitrators, and their award to be a rule of court. The provisions of the Code of Civil Procedure have not repealed the common law practice of reference to arbitrators. The practice is still extant, notwithstanding the Code. Crisp v. Love, 65 N. C. 126 ; Gudger v. Baird, 66 N. C. 438 ; Hilliard v. Rowland, 68 N. C. 506. Arbitrators are not bound to find the facts. The effect of a ref- erence to arbitrators is very different from that of a reference under the Code. The arbitrators may choose an umpire ; they are not bound to find the facts separately from their conclusions of law: they are not bound to decide according to law; and their award may be general; thus, "that plaintiff recover $ and costs." Lusk V. Clayton, 70 N. C. 184; Pickens v. Miller, 83 N. C. 543. And where the award is made and no exceptions taken, or, if taken, not sustained, the practice has uniformly been for the court to render judgment according to the award. In England, where the submission of a cause to arbitrators was made a rule of court, the practice was to grant an attachment for all disobedience of a rule of court to stand to the submission and award. But it has been said by Chip.f Justice Rupfin that, in- stead of the attachment in this state, the practice, from a period so early that no one of the profession loiows when it did not exist, has been to enter judgment for the debt or damages according to the award. Cimningham v. Howell, 23 N. C. 9 ; same principle in Sec. 3 b.] WITHOUT JUDICIAL PROCEEDINGS. 95 Simpson v. McBee, 14 N. C. 531. In the former of these cases, where the judgment was sustained hy this court, the entries were very similar to those in this case. There, there was an order of reference submitting the cause to arbitrators, whose award was to be a rule of court. An award was made and returned that Hyatt should pay to the plaintiff the sum of $155, and there was judg- ment for the sum of $155, according to the award. . . There is no error. Affirmed. In Henry v. Hilliard, 120 N. C. mid. p. 486, 27 S. B. 132, it is said: "But it is not necessary tliat tlie arbitrators shall decide or undertake to decide any matter before them according to law. It is said 'they are a law unto themselves.' Osborne v. Calvert, 83 N. C. 365; Keener v. Goodson, 89 N. C. 273. Neither is it necessary that they set out the facts upon which they base their findings, or assign any reason for their find- ings. It is said it is best they should not do so. Osborn v. Calvert, supra. Neither can an award be set aside where exceptions are made to the award upon the ground of error alone, in the findings, unless they appear upon the face of the award and the terms of the submission. To set aside an award, it must appear there has been fraud, undue influence or some improper conduct on the part of the arbitrators. No such alle- gations are made here, or, if they are, nothing of the kind is found by the judge who set aside the judgment. King v. Mfg. Co., 79 N. C. 360, and cases there cited." See "Arbitration and Award," Century Dig. § 266; Decennial and Am. Dig. Key No. Series, § 52. 96 BY JUDICIAL PROCEEDINGS. [Cll. 2. CHAPTER II. REMEDIES BY JUDICIAL PROCEEDINGS. Sec. 1. Ceiminal and Civil Proceedings Distinguished, state (and susanna adams) v. pate, 44 n. c. 244. 1853. Criminal and Civil Actions Explained. Bastardy. [Proceedings in bastardy against Pate. Verdict and judgment against plaintiff, and the State appealed. Reversed. On the trial below, the solicitor for the state claimed the right of mak- ing four peremptory challenges to jurors. The judge ruled against this claim.] Pearson, J. By the Revised Statutes, ch. 31, sec. 37, "each party in all civil suits" may challenge peremptorily four jurors. So the question is, are proceedings in bastardy ' ' civil suits ? ' ' Suits are either civil or criminal. All criminal suits are prose- cuted in the name of the state ; but all suits prosecuted in the name of the state are not criminal suits: — an action of debt may be prosecuted in the name of the state. The true test is, when the proceeding is by indictment, it is a criminal suit ; when by action or other mode, although in the name of the state, it is a civil suit, and should be by the clerks put on the civil, as distinguished from the state docket. By the "Declaration of Rights," no free man shall be put to answer any criminal charge, but by indictment, presentment, or impeachment. By Rev. Stat. ch. 35, sec. 6, no per- son can be charged in a criminal proceeding except upon a bill of i]idietment. Tested in this way, the present is a " civil suit, ' ' al- though prosecuted in the name of the state, and the plaintiff was entitled to four peremptory challenges. The object of the suit is not to punish the defendant for an act done to the injury of the public, but to indemnify the county of Wayne against a liability for the support of a bastard child, of which the defendant is, by law, the reputed father. . . . Judgment reversed, and venire de novo awarded. At one while, since this decision, bastardy proceedings were held to he criminal; but now they are again declared to he civil. State v. Liles, 134 N. C. 735, 47 S. E. 750. See in support of the principal case, Marston V. Jenness, 11 N. H. 156, Smith's Cases L. P. 117. See "Bastards," Cen- tury Dig. § 35%; Decennial and Am. Dig. Key No. Series, § 19. ^ec. 1.] BY JUDICIAL PROCEEDINGS. 97 STATE V. GATES, 88 N. C. 668. 1883. Peace Warrant — Civil or Criminalf [Gates was arrested under a peace warrant, issued by a justice of the peace, and required to give bond to keep the peace. Pugh became his surety. Gates being accused of a breach of this bond, the justice issued a scl. fa. to Gates and Pugh, and, they not appearing, adjudged the bond forfeited, and that it be prosecuted according to law. From this judg- ment Gates appealed to the Superior Court. In that court the justice's judgment was affirmed. Gates and his surety then appealed to the Su- preme Court, assigning as error that the justice of the peace had no ju- risdiction in the matter of enforcing the bond, because the penalty thereof exceeded two hundred dollars. Affirmed.] Ashe, J. The defendants' appeal seems to be founded upon the idea that this was a civil action, and the jurisdiction of the justice was restricted by the constitution to two hundred dollars. That is so, if it is a civil action. The constitution gives to justices of the peace, under such regulations as the general assembly shall pre- scribe, jurisdiction of civil actions founded on contract, wherein the sum demanded shall not exceed two hundred dollars. Art. IV, s. 27. But this is not a civil action. It is an action prosecuted by the state, at the instance of an individual, to prevent an appre- hended crime against his person or property (Bat. Rev. ch. 17, s. 5, sub. s. 2) and this provision of the Code has had a construction given it by this court in the case of State v. Locust, 63 N. C. 574, where it was held that a proceeding upon a peace warrant was a criminal action. Actions by the Code are divided into two kinds — civil and crim- inal. A criminal action is, 1. An action prosecuted by the state, as a party, against a person charged with a public offense for the punishment thereof; and 2. An action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime against his person or property. Every other is a civil action. Bat. Rev. ch. 17^ s. 6. The distinction between criminal actions is founded upon the difference, whether it is a proceeding for a pub- lic offense, in the nature of an indictment for a misdemeanor, or to prevent (as in this case, for example) a threatened crime against a private person. In the former ease, the constitution has re- stricted the jurisdiction of justices, by declaring that a justice should have jurisdiction of aU criminal matters arising within their counties, where the punishment cannot exceed a fine of fifty dollars or imprisonment for thirty days. Art. IV, s. 27. This pro- vision was evidently intended to limit the jurisdiction of justices in criminal actions in the nature of indictments, where final juris- diction was given them. But we do not think it has any applica- tion to criminal actions of the second kind, which affect only pri- vate rights. This action is left by the constitution to be regulated by the legislature ; and it has been regulated by the acts of 1868-69, ch. 178, and of 1879, ch. 92. The latter act gives to justices of the peace exclusive original jurisdiction of peace Avarrants and pro- ceedings thereunder, and contains no repealing clause. The former Remedies — 7. 98 BY JUDICIAL PROCEEDINGS. [GJl. 2. act provides that justices of the peace may take recognizances to keep the peace, in any sum not exceeding one thousand dollars, and prescribes the proceedings to be had to enforce the same. Those provisions of the act that are not inconsistent with the ex- clusive jurisdiction given by the act of 1879, are not repealed; therefore, sub-chapter 2, section 10 of the act (Bat. Rev. ch. 33, s. 103) is still in force, which provides that ' ' every person, who shall have entered into a recognizance to keep the peace, shall appear according to the obligation thereof; and if he fail to appear, the court shall forfeit his recognizance and order it to be prosecuted, unless reasonable excuse for his default be given." The justice of the peace, in the case before us, has strictly fol- lowed this provision of the statute. The recognizance imposed upon the defendants the duty to appear before the justice and show cause whenever he should notify them to appear before him to answer the alleged breach of the conditions of the recognizance, and in default thereof, the law required the justice to declare the forfeiture. There is no error. Let this be certified to the superior court of Sampson county, that the court may certify to the jus- tice 's court to the end that the case may be proceeded with accord- ing to law. AfSrmed. See "Breach of the Peace," Century Dig. § 7; Decennial and Am. Dig. Key No. Series, § 16. WHITTEM V. THE STATE, 36 Ind. 196, 202-204. 1871. Contempt Proceedings — Givil or Criminal? fWhlttem was sued for seduction. Counsel for the female plaintiff announced in open court that they were credibly informed that Whittem had abducted their client who was a necessary witness in her own be- half. After an ineffectual attempt to have their client served with process commanding her presence in court, an attachment for contempt was issued against Whittem, by which he was brought into court to an- swer the charge of contempt in abducting the plaintiff. At the investi- gation of this charge the judge, ex mero motu, examined Whittem as to the alleged contempt. Whittem declined to answer questions as to the charge, on the ground that his answers would tend to convict him of a crime. The judge sustained Whittem in his refusal to answer, but gave judgment that Whittem was guilty of contempt in abducting the plain- tiff; and that he be imprisoned until he produced her in court, unless sooner discharged. TKere were sundry motions by Whittem after this judgment and his imprisonment thereunder. Eventually Whittem ap- pealed. At the threshold the Supreme Court was confronted with the question whether an appeal would lie in this case, and whether the court had jurisdiction to review the judgment of the lower court. To deter- mine these questions. In view of the statutes of the state regulating ap- peals and appellate jurisdiction, it became necessary to determine whether the proceedings in contempt against Whittem we're ciml or crim- inal in their nature. Only so much of the opinion as bears upon this question is inserted here.] BrsKiRK, J. . "Was the proceeding under consideration a civil or criminal action ; or did it so far partake of the nature of Sec. 1.] BY JUDICIAL PROCEEDINGS. '.)'.> either that it is to be governed by the principles of law and rules of practice applicable to either of those actions ? That it was not a civil action is too plain to admit of a doubt, or to justify a ref- erence to authorities. The criminal law of this state is entirely statutory, and not of common law origin. Beal v. The State, 15 Ind. 378. This is not, strictly speaking, a criminal action ; for such a charge must either be presented by indictment or information. The record discloses the 'fact that this proceeding is in the name of the State of Indiana against William Whittem, charging him with a contempt of court ; and a final judgment was rendered by which he was imprisoned in the jail of the county for an uncertain and indefinite period of time. The case of Crook v. The People, 16 111. 534, was a proceeding against Crook and others for contempt, in disobeying an injunc- tion, and the court held that it was not, strictly speaking, a crim- inal action, because no indictment had been found by the grand jury ; but it was called a criminal prosecution for contempt ; and while the court declined to decide whether an appeal could be taken in an. information for contempt, it was held that the answer of the party charged with contempt could be controverted, and the fact alleged in excuse be disproved. In Pitt V. Davison, 37 N. T. 235, the court held that there was a distinction between proceedings to punish for criminal con- tempts, and proceedings as for contempts to enforce civil remedies, and that in the former cases personal notification of the accusa- tion was necessary. The Supreme Court of the United States, in Ex parte Kearney, 7 "Wheat. 38, which was an application for a habeas corpus to bring up the body of John T. Kearney, then in jail, upon the order and judgment of the Circuit Court of the District of Columbia, for contempt of court in refusing to testify as a witness, held, that that court had no jurisdiction of the case, for the reason that it had no appellate jurisdiction of criminal cases, and, that teing a criminal charge, no right of appeal existed. The court say: "If this were an application for a habeas corpus, after judgment on an indictment for an offense within the jurisdiction of the circuit court, it could hardly be maintained that this court could revise such a judgment, or the proceedings which led to it, or set it aside and .discharge the prisoner. There is, in principle, no distinction between that case and the present; for when a court commits a party for contempt, their adjudication is a conviction, and their commitment, in consequence, is execution. ' ' Lord Chief Justice Db Grey, in Brass Crosby, Lord Mayor of London, 3 Wils. 188, said: "When the House of Commons ad- judged anything to be a contempt, or a breach of a privilege, their adjudication is a conviction, and their commitment, in conse- quence, is execution ; and no court can discharge, on bail, a person that is in execution by the judgment of any other court. ' ' In our opinion, these authorities demonstrate that a proceeding for contempt is in the nature of a criminal prosecution. The re- 100 BY JUDICIAL PROCEEDINGS. [Cll. 2. suits and consequences are the same in the one proceeding as in the other. In both the party convicted may be deprived of his liberty and confined in jail, and subjected to the payment of a fine. As has been shown, our statute gives an appeal to this court from all final judgments. [The court ruled that the appeal would lie, and for divers errors committed in the lower court, none of which are germane to the subject of this chapter, the judgment appealed from was reversed and Whittem ordered to be discharged.] See "Contempt," Century Dig. § 124; Decennial and Am. Dig. Key No. Series, § 40. EX PARTE GOULD, 99 Cal. 360, 21 L. R. A. 751, 33 Pac. 1112. 1893. Contempt Proceedings — Civil or Criminal? [Gould being committed to prison for alleged contempt of court, peti- tioned for a writ of habeas corpus. He was discharged from custody upon the hearing. The facts appear in the beginning of the opinion.] Harrison, J. In an action pending in the supeiror court in and for the county of Tuba, wherein the county of Sacramento is plaintiff, and the petitioner one of the defendants, a writ of injunc- tion was served upon the defendant, requiring him to refrain from doing certain acts therein specified. While this writ was in full force, the petitioner was charged before said court with having violated its terms, and was ordered to show cause why he should not be adjudged guilty of contempt therefor. Upon the hearing of this charge the court required the petitioner to be sworn as a witness, to which he objected upon the ground that he could not be compelled to he a witness against himself in the proceedings, for the reason that they were of a criminal nature. The court, however, overruled his objection, and required him to be sworn as a witness; and he, acting under the advice of his counsel, still declining and refusing to be sworn, for the aforesaid reason, the court adjudged him guilty of contempt, and committed him to the county jail, there to remain until he should purge himself of said contempt by consenting to be sworn as a witness in said case, and to testify therein. Article 1, s. 13, of the Constitution of this state, declares that "no person shall be compelled, in any criminal case, to be a wit- ness against himself. ' ' Section 1323 of the Penal Code provides that "a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself." Contempt of court is a public offense, and by section 166 of the Penal Code is ex- pressly declared to constitute a misdemeanor, and the refusal of a witness to be sworn is an offense committed in the presence of the court. It is none the less a criminal offense that the statute author- izes it to be punished by indictment or information, as well as by summary proceedings provided in sections 1209-1222 of the Code of Civil Procedure. By these provisions, the procedure for the Sec. 1.] BY JUDICIAL PROCEEDINGS. 101 investigation of the charge is analogous to the criminal procedure, and' the judgment against the person guilty of the offense is visited with fine or imprisonment, or both — the essential elements of a judgment for a criminal offense. "Contempt of court is a specific criminal offense. It is punished sometimes by indictment and sometimes in a summary proceeding, as it was in this case. In either mode of trial the adjudication against an offender is a conviction, and the commitment in consequence is execution. ' ' Wil- liamson 's case, 26 Pa. 19, 67 Am. Dec. 374. "Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the dignity and authority of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor." Haight V. Lucia, 36 Wis. 360. In Ex parte Hollis, 59 Cal. 408, it was said: "To adjudge a party guilty of contempt of court, for which he is fined and im- prisoned, is to adjudge him guilty of a specific criminal offense. The imposition of the fine is a judgment in a criminal case. ' ' See also Ex parte Kearney, 20 U. S. (7 Wheat.) 38, 5 L. Ed. 391; Ex parte Crittenden, 62 Cal. 534 ; New Orleans v. New York Mail S. S. Co., 87 U. S. (20 Wall.) 387, 22 L. Ed. 354; Re Mullee, 7 Blateh. 23; Fed. Cas. No. 9,911; Rapalje, Contempt, s. 21. In Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, Justice Bradley has given an exhaustive and interesting historical discussion of the power of a court to compel a defendant in a criminal proceeding to give testimony against himself. In that case an information was filed against certain property for its confiscation under the Revenue Laws of the United States, and the claimants, having been directed by the court to produce in evi- dence certain invoices, for the purpose of establishing the claim of the government, objected thereto on the ground that the statute under which the order was made was in violation of the 4th and 5th amendments to the Constitution. It was held that, although the proceeding was in rem, and in the nature of a civil proceed- ing, yet an action for the forfeiture of property for the violation of law is, in effect, a criminal proceeding, and that the owner of the goods, after making his claim, is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offense, and can- not be compelled to furnish evidence against himself. Personal liberty is, however, more sacred than mere rights of property, and the reasons for protecting the owner of property against being compelled to give evidence against himself in a proceeding for its forfeiture are in the same degree more cogent when his personal liberty is at stake. It was said by Justice Bradley in the case last cited : ' ' Constitutional provisions for the security of person and property should be liberally construed. A close and literal con- 102 BY JUDICIAL PROCEEDINGS. [Gh. 2. struetion deprives them of half their efHeaey, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitu- tional rights of the citizen, and against any stealthy encroach- ments thereon. Their motto should be 'obsta principiis. ' " We hold, therefore, that the court was not authorized to direct the petitioner to be sworn as a witness in the proceeding, and that its order adjudging him guilty of contempt for his refusal, and pun- ishing him therefor, was without authority, and that the petitioner should be discharged, and it is so ordered. In 4 Blackstone, *287, 288, it is said that one charged with contempt may be required "to answer upon oath such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. This method of making the de- fendant answer upon oath to a criminal charge. Is not agreeable to the genius of the common law in any other instance; and seems to have been derived to the courts of King's Bench and Common Pleas through the medium of the courts of equity. The method of examining the delin- quent himself upon oath with regard to the contempt alleged, is of high antiquity and by long and immemorial usage is now become the law of the land." See Kane v. Haywood, 66 N. C. hot. p. 30, which seems to hold with this quotation from Blackstone. In re Haines, 67 N. J. L. 442, 51 Atl. 929, sustains the principal case. As to whether the proceedings are civil or criminal, see 13 L. R. A. (N. S.) 591, 598, and notes. See "Contempt," Century Dig. § 124; Decennial and Am. Dig. Key No. Series, § 40. BAKER V. CORDON, 86 N. C. 116. 1882. Contempt Proceedings. Trial ty Jury. [Rule on Cordon to show cause why he should not be attached for con- tempt. Judgment against Cordon, and he appealed. Affirmed. Cordon was charged with violating an injunction theretofore issued in a civil action entitled Baker v. Cordon. Upon the hearing of the con- tempt proceedings the judge sentenced Cordon to jail for ten days. Only so much of the opinion as relates to trial by jury is here insertedl Smith, C. J. . . . The brief filed by defendant's counsel points us to two alleged errors in the action of the court. 1. The defendant was entitled to a jury trial of the controverted facts : The exception is untenable. The proceeding by attachment for violating an order of court made in furtherance of a pending ac- tion, is necessarily summary and prompt, and, to be effectual, it must be so. The judge determines the facts and adjudges the con- tempt, a,nd while he may avail himself of a jury and have their verdict upon a disputed and doubtful matter of fact, it is in his discretion to do so or not. State v. Yancey, 4 N. C. 133 ; State v. Woodiin, 27 N. C. 199; Moye v. Cogdell, 66 N. C. 403; Crow v. State, 24 Tex. 12. But if it were not so, it is sufficient in meeting the exception, to say, that a jury trial was not demanded and the judge proceeded to pass upon the ease, if not with the consent, at least without Sec. 1.] BY JUDICIAL PROCEEDINGS. 103 objection from either party. Isler v. Mui-phy, 71 N. C. 436. . . . Affirmed. For a full review of the law as to contempts committed In the actual or constructive presence of the court — such as assaulting a judge, In or out of court, tor his acts while on the bench; the Inherent powers of courts in such cases; the invalidity of legislation attempting to curtail this power of the courts; and when an appeal or habeas corpus does or does not lie to review the judgments of lower courts in proceedings for contempt, see Ex parte McCown, 139 N. C. 95, 51 S. E. 957. For a further discussion of the right of appeal in such cases, see Whittem v. The State, 36 Ind., at pp. 210 et seq. If a criminal prosecution be pending in the supreme court of the United States, on writ of error to the state court, the sheriff and jailor will be committed for contempt of the supreme court of the United States if the prisoner be lynched by reason of a want of proper precautions and preventive measures on the part of those officials; also if such officers be derelict in their duty to apprehend or identify the lynchers. The lynch- ers are also in contempt. U. S. v. Shipp, 214 U. S. 386, 29 Sup. Ct. 637. For the powers of committing magistrates, mayors, and other inferior courts, to punish for contempt, see Scott v. Fishblate, 117 N. C. 265; Farnham v. Colman, 1 L. R. A. (N. S.) 1135, and note. For what con- stitutes contempt, see notes to Ex parte McCown, in 2 L. R. A. (N. S.) 603; see also 5 lb. 916; 15 lb. 389, 621; 16 lb. 1063; 17 lb. 572, 582, 585, 1049, and notes; 23 lb. 255, 1295, and notes. See "Jury," Century Dig. § 139; Decennial and Am. Dig. Key No. Series, § 21. STATE V. CANNADY, 78 N. C. 539. 1878. Marking One as Prosecutor and Taxing Him With Costs. Imprisonment Till Costs Be Paid. Civil or Criminal? [Cannady obtained a peace warrant against McCullers. Upon the hear- ing of the matter the judge ruled that the prosecution was frivolous and malicious on the part of Cannady, and ordered him to pay the costs, and to be held in custody by the sheriff until the costs were paid. Cannady appealed. Affirmed.] Eeade, J. The questions are: (1) Can a prosecutor be ordered to pay the costs where the prosecution is frivolous or malicious; and (2) be imprisoned therefor if he fail to pay? The statutes answer both questions in the affirmative: "The party convicted shall be always adjudged to pay the costs, and if the party charged be acquitted, the complainant shall be adjudged to pay the costs, and may be imprisoned for non-payment thereof." Bat. Rev. ch. 35, s. 132. "If a defendant be acquitted, the costs shall be paid by the prosecutor, if any be marked on the biU, unless the judge shall certify," etc. C. C. P. s. 560; State v. Lupton, 63 N. C. 483; State V. Darr, Ibid. 516. But then it is said that the statute is uncon- stitutional. The Constitution provides that in a criminal prosecution no one shall be compelled "to pay costs unless found guilty." And that "no person shall be put to answer a criminal charge except by in- dictment, presentment or impeachment." And that "no one shall 104 BY JUDICIAL PEOCEEDINGS. [Ch. 2. be convicted, but by the unanimous verdict of a jury. ' ' And that "there shall be no imprisonment for debt, except in cases of fraud. ' ' Const, art. 1, ss. 11, 12, 13, 16. And thence it is insisted that, as the prosecutor has not been indicted, and has not been convicted, he cannot be compelled to pay costs, if costs be regarded as a tine or punishment; and even if indicted and convicted, and the costs be regarded, not as a fine or punishment, but as a debt, he cannot be imprisoned for debt in the absence of fraud. The questions were well argued, and we have had some difBculty in arriving at a satisfactory conclusion. It is manifestly the sense of the Constitution ajid of the stat- utes, that a defendant should not pay costs imless convicted. Why be more careful of the defendant than of the prosecutor? The answer is, that the acquittal of the defendant is substantially the conviction of the prosecutor, where the prosecution is frivolous or malicious. And the same section of the Constitution which pro- vides that no one shall be convicted but by the verdict of a jury, provides further, "that the legislature may provide other means of trial for petty misdemeanors, with the right of appeal." And so it is not a strained construction to say that the legislature has pre- scribed another mode of trial for a petty misdemeanor, when it enables the court to compel the prosecutor to pay costs, when he has frivolously or maliciously charged a man with crime, whom the jury acquits. It is not with a prosecutor as it is with a defendant. A defend- ant is brought in whether he will or not and ought not to pay costs unless convicted; but the prosecutor comes voluntarily. He is the actor with knowledge of the consequences of failure. He stipulates beforehand that if his clamor be false, he will pay the costs. And if the defendant is acquitted, and the prosecution is adjudged to be frivolous or malicious, he stands guilty confessed, as if he had submitted or pleaded guilty, and there is no need of a jury to con- vict him. It has too long been the practice both in England and America to make the prosecutors pay costs in such cases, to doubt its pro- priety ; and we do not think it was the purpose of our Constitution to prohibit it. It is insisted that the costs in a criminal prosecution are not a fine or punishment, but that they are a deht; and that there can be no imprisonment for debt. In State v. Manuel, 20 N. C. 20 (144), it is said that fine and costs are both punishment, and that neither is a debt in the sense contemplated by the constitution where the relation of debtor and creditor is meant. And manifestly where the judgment is that he liny a fine of so much and the costs, one is as much a punishment as the other. And where the judgment is, that he be imprisoned, for say so long, and pay the costs, our statute prescribes that when the term of imprisonment is out, he shall still remain in prison until he pay the costs, or be otherwise discharged according to law. Bat. Rev. ch. 33, s. 129. In State v. Manuel, supra, there is an exhaustive discussion of Sec. 1.] BY JUDlCIiVL PROCEEDINGS. 105 the questions involved by Judge Gaston in delivering the opinion of the court. In that case the defendant was a free-negro, and was fined $20 for an assault and battery, and ordered to be hired out to pay the fine, under the statute then existing. His defense was threefold. 1st. That the fine was a debt, and that the constitution forbids imprisonment for debt; 2nd. That the fine was excessive, in that, it was laid, and directed by the statute to be laid, high enough to cover the costs, although the crime itself did not deserve so high a fine; 3rd. That the punishment was cruel and unusual, ,in that, it directed the defendant to be hired out. 1. The conclusion arrived at on the first defense was, that a fine was not a debt within the meaning of the constitution. That "the constitution itself discriminates between debts and fines; it pro- vides against unnecessary and wanton imprisonment for the col- lection of debts, but in regard to fines, its language is, 'excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.' Here we find a fine classed where it ought to be, among the means used in the administration of criminal justice and in immediate connection with other punish- ment imposed or inflicted in the course of that administration. The costs of a convicted offender are not a debt. . They are a part of the sentence of the court. Prom this review of our usages, legislative acts and judicial interpretations of them, it follows, that the sentence pronoimced against a convicted criminal, that he should pay the costs of prosecution, is as much a part of his pun- ishment as the fine imposed eo nomine. ' ' 2. In regard to the second defense, that the flne was excessive, in that, it required the fine to be high enough to cover the costs, although the crime itself might not deserve so high a fine, it was said, that the legislature had the power to prescribe that a con- victed criminal should be fined to the amount of the costs ; that it was the peculiar province of the legislature to declare what should be crimes and their punishments, and that the judiciary could not control the legislature except perhaps, ' ' which it would be almost indecent to suppose, ' ' the legislature should grossly exceed its con- stitutional restraints; that although "the language of the Bill of Rights is addressed directly to the judiciary for the regulation of their conduct in the administration of justice, it is the courts that require bail, impose fines, and inflict punishment; and they are required not to require excessive bail, not to impose excessive fines, not to inflict cruel or unusual punishments, and it would seem to follow that the command is addressed to them only in those cases where they have a discretion over the amount of bail, the quantum of fine, and the nature of the punishment. No doubt the principles of humanity sanctioned and enjoined in this section ought to com- mand the reverence and regulate the conduct of all who owe obedi- ence to the constitution." But when the legislature, whose pe- culiar duty it is to make laws, prescribed a punishment, the courts were bound thereby, except, perhaps, in extraordinary cases, as that was not. 3. In regard to the third defense, that the punishment of hiring 106 BY JL'DICIAL PROCKEDINGS. [Cti. 2. oiit was cruel and unusual, it was held that it was not ; because a bond was taken from the hirer conditioned as an apprentice bond for his humane treatment, and the well known relation of master and apprentice was established. And as we had no penitentiary or workhouse, it was appropriate and just to make a convict work out his fine instead of allowing him to go without punishment for his crimes. So our opinion is: 1st. That neither a fine nor costs inflicted as a punishment is a debt within the meaning of the constitution in relation to this matter; 2nd. That the legislature had the power to prescribe as it has done, that the prosecutor may be made to pay costs, where the defendant is acquitted and the prosecution is frivolous or malicious; 3rd. That there is nothing cruel or unusual in requiring a prosecutor, who has not been indicted and convicted by a jury, to pay costs, nor is it contrary to the con- stitution, because it has long been the practice to do so, and be- cause suijstantially he stands convicted by his false clamor and the acquittal of the defendant. . . Judgment affirmed. See "Costs," Century Dig. §§ 1129, 1202; Decennial and Am. Dig. Key No. Series, §§ 298, 322. ATCHBSON V. EVERITT, Cowper, 382, 391. 1776. Action for a Penalty — Civil or Criminal? [Action of debt for a penalty, upon the statute of 2 Geo. 2, against bribery. Judgment against defendant. Motion for new trial. New trial refused. On the trial of the action for the penalty before Nares, J., a Quaker was permitted to give evidence against the defendant. The Quaker was not sworn, but was only required, to afBrm. Under the acts of parliament then in force a Quaker was allowed to give evidence in a civil case upon his affirmation; but. he was not allowed to do so in a criminal case.] Lord Mansfield. . . . We come then to this question: Is the present a criminal cause? A Quaker appears and offers him- self as a witness ; can he give evidence without being sworn ? If it is a criminal case, he must be sworn, or he cannot give evidence. Now there is no distinction better known than the distinction between civil and criminal law ; or between criminal prosecutions and civil actions. ]\Ir. Justice Blackstonb and all modem and ancient writers upon the subject distinguish between them. Penal actions were never yet put under the head of criminal law, or crimes. The con- struction of the statute must be extended by equity to make this a criminal cause. It is as much a civil action, as an action for money had and received. The legislature, when they excepted to the evidence of Quakers in criminal causes, must be understood to mean causes technically criminal; and a different construction would not only be injurious to Quakers, but prejudicial to the rest of the King's subjects who may want their testimony. The case Sec. 1.] BY JUDICIAL PEOCEEDINGS. 107 mentioned by Mr. Rooke of Sir Watkyn "Williams Wynne versus Middleton, is a very full authority, and alone sufficient to warrant the distinction between civil and criminal proceedings. In that case the question was, whether the Stat. 7 & 8 Wm. 3, c. 7, was penal or remedial. The court held "it was not a penal statute. But supposing it was to be considered as a penal statute, yet it was also a remedial law; and therefore the objection taken was cured by Stat. 16 & 17 Car. 2, c. 8." Now the words of excep- tion in that statute, and also in Stat. 32 Hen. 8, c. 30, and in Stat. 18 Eliz. c. 14, are "penal actions, and criminal proceedings." But Ijord Chief Justice Willes, in delivering the solemn judgment of the court, says, there is another act which would decide of itself, if considered in the light of a new law, or as an interpretation of what was meant by penal actions in the Stat. 16 & 17 Car. 2, e. 8. This is the statute of jeofails 4 Geo. 2, e. 26, for turning all law proceedings into English, and it has this remarkable conclusion, "that every statute of jeofails shall extend to all forms and pro- ceedings in English (except in criminal cases) ; and that this clause shall be construed in the most beneficial manner." This is very decisive. No authority whatever has been mentioned on the other side, nor case cited where it has been held that a penal action is a crim- inal case; and perhaps the point was never before doubted. The single authority mentioned against receiving the evidence of the Quaker in this case is an appeal of murder. But thai is only a different mode of prosecuting an offender to death. Instead of proceeding by indictment in the usual way, it allows the relation to carry on the prosecution for the purpose of attaining the same end which the king's prosecution would have had, if the offender had been convicted, namely, execution ; and therefore, the ivriters on the law of England class an appeal of murder in the books under the head of criminal cases. . . . We are not under the least embarrassment in the present case ; for there is not a single authority to prove that upon a penal action a Quaker's evidence may not be received upon his affirma- tion. Therefore, I am of opinion that Mr. Justice Nares did per- fectly right in admitting this Quaker to be a witness upon his affirmation, and consequently that the rule for a new trial should be discharged. Under the Code practice such actions are still classed as civil. Wil- mington v. Davis, 63 N. C. at p. 584. See "Action," Century Dig. § 96; Decennial and Am. Dig. Key No. Series, § 18. McRAE V. KELLER, 32 N. C. 398. 1849. Action for a Penalty Imposed for an Offense to the Puilic. When the Informer May Sue. [McRae sued, on behalf of himself and the Wardens of the Poor, to recover a penalty given by statute. Plea, not guilty. Case submitted on a case agreed. Judgment against defendant, and he appealed. 108 BY JUDICIAL PROCEEDINGS. [C'/l. 2. The action was commenced before a justice of the peace, and carried to the Superior court by appeal, and thence to the Supreme court. The facts appear in the opening of the opinion.] RuPFiN, C. J. The writ was commenced by warrant to recover the penalty of $100, given by the Revised Statutes, ch. 34, s. 75, for selling spirituous liquors to a slave. It was submitted to the court upon a case agreed, in which the facts charged were ad- mitted, and the only objection to the recovery was, that the act does not give the informer an action. His Honor held that it did ; and from a judgment against him the defendant appealed. The opinion of the court is, that the judgment was right. The act gives the penalty, "to be recovered by warrant before any justice of the peace, and applied one-half to the use of the wardens of the poor of the county." The single question is, in whose name the suit is to be brought; and it seems difficult to imagine a clearer direction than that it is to be in the name of any person who will bring the suit — "the party suing for the same." It is true, that an informer has no right, at common law, to an action for a penalty; and, therefore, he cannot bring an action unless the statute give it to him. [After commenting on and approving Fleming v. Bailey, 5 East, 313, the opinion proceeds:] When a statute prohibits a thing as an offense to the public, under a pen- alty, no debt arises to a private person, unless the statute also gives the penalty or a part of it to him who will sue for it, as laid down, long before the case cited, by Sergeant Hawkins. PI. C. Bk. 2, ch. 25, s. 17. The reason is, that the penalty for such pub- lic offense belongs to the sovereign as a debt, and is to be recov- ered by action in the name of the sovereign. Rex v. Malland, Str. 828. The case of Fleming v. Bailey is, then, an authority to this only, that applying a part of the penalty, after its recovery, to the benefit of an informer, does not confer on him the power of sning for the penalty. In other words, that the term "informer," in the statute, does not per se imply, that in such a case he may be "the plaintiff" in an action for the recovery, but only the informer or prosecutor, as he is sometimes called. But the pro- vision in this statute is not of that kind. It creates a penalty, "to be recovered by warrant, and applied one-half to the use of the party suing for the same, and the other half to the wardens of the poor." This recognizes the right of action in some person. In whom? Why, "the person suing," as plainly as it can be. Ser- geant Hawkins, in the section already quoted, states, that when a statute gives a part of a penalty "to him who will sue for it," he took it to be settled, that any one may bring an action and lay it tam pro domino rege quam pro seipso ; thus using the very terms in which the act under consideration is expressed. There are, indeed, many acts in which the like language is found, on which informers have sued in their own names. Both the English stat- ute and our own against usury, for example, have the words, ' ' the one moiety of which forfeitures to be to him that will sue for the same by action of debt, and the other, ' ' etc. ; and we know that in both countries the action of debt in such cases is constantly Sec. 1.] BY JUDICIAL, PROCEEDINGS. lOO' brougkt in the name of the informer qui tarn. Those words, "to him that will sue for the same ' ' and ' ' to the use of the party suing for the same," not only determine the interest which the informer is to have in the penalty, but necessarily imply, if they do not expressly confer, his right of action qui tarn. . Judgment affirmed. See "Penalties," Century Dig. §§ 20-22; Decennial and Am. Dig. Key- No. Series, §§ 22-25. THE GOVERNOR v. HOWARD, 5 N. C. 465. 1810. Action for Penalty. Repeal of Statute Imposing the Penalty. [Action of debt to recover a forfeiture or penalty, imposed by the act of 1794, for knowingly buying an imported slave. The cause was transi- ferred to the Supreme court, where it was decided against the plaintiff. After this action was commenced and after issue joined, the act of nSJf was repealed. Such repeal was pleaded by defendant by way of a plea since the last continuance. Plaintiff demurred to this plea, and the defendant having joined in the demurrer, the case was sent to the Su- preme court] HaijL, J. It is laid down in Cro. Eliz. 138, that the Attorney General cannot enter a nolle prosequi to an action qui tam, except for the king's part of the penalty; nor can the ting, after action commenced, release any but his own part of the penalty. 2 Bl. Com. 436 ; 11 Co. 65. But it is in the power of parliament to release the informer's interest. 2 Bl. Com. 436. If so, they surely have the power of taking away the informer's right of action, by repealing the act which gave birth to it. It is said (Wm. Bl. 451) in Sir "William Blackstone's Reports, "that no proceeding can be had or pursued under a repealed act of parliament, though begun before the repeal, unless by special exception." And by Sir Matthew Hale (P. C. 291), "that when an offense is made treason or felony by an act of-parliament, and then that act is re- pealed, the offense committed before such repeal, and the pro- ceedings thereupon are discharged by such repeal." From these authorities, and others which might be referred to, as well as from the circumstance that the suit in the present instance must be brought in the name of the governor alone (the act having directed the forfeiture to be sued for in his name) , although after a recov- ery one moiety thereof is to go to the informer or the person who brought the suit, the demurrer must be overruled and the plea al- lowed. In State v. Mooney, 74 N. C. 98, it is decided that a pardon after judg- ment does not affect the informer; for which is cited 5 Gill. 214; 35 Iowa, 419; 2 Bay. 565; 2 Durn. & East, 569; 5 Co. 51; 3 Inst. 238; 46 Penn. 446; 8 Blackford, 229; 2 Whart. 440. See "Forfeitures," Century Dig. § 1; Decennial and Am. Dig. Key No. Series, § 2; "Statutes," Century Dig. § 348; Decennial and Am. Dig. Key No.. Series, § 266. 110 BY JUDICIAL PROCEEDINGS. [CIl DUNHAM V. ANDERS, 128 N. C. 207, 38 S. E. 832. 1901. Action for a Penalty. Repeal of Statute Imposing the Penalty. [Action by the state, ex rel. Dunham, against Anders, commenced be- fore a justice of the peace. The justice gave judgment against Anders, who appealed to the Superior court. In the Superior court judgment was rendered against plaintiff, and he appealed. Reversed. The action was brought to recover a penalty under a statute. The plaintiff recovered a judgment for the penalty in the justice's court on March 25, 1899. Pending the appeal to the Superior court, to-wit, on March 2, 1901, the act imposing the penalty was repealed. This repeal- ing act contains this clause: "This act shall apply to suits now pending for the collection of such penalties." The judge of the Superior court ruled that this statute "destroyed the plaintiff's cause of action and re- lieved the defendant of" the penalty.] Douglas, J. The only point presented for our consideration is whether a plaintiff can by a justice's judgment, remaining unre- versed, acquire such a vested right in the penalty as cannot be taken from him by the legislature. Cooley in his work on Constitutional Limitations, says at page 443 : ' ' So, as before stated, a penalty given by statute may be taken away by statute at any time before judgment is recovered. ' ' But the same distinguished author says at page 443 : ' ' But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against ar- bitrary interference. ' ' In the recent case of Dyer v. Ellington, 126 N. C. 941, 36 S. E. 177, this court says on page 944: "An informer has no natural right to the penalty, but only such a right as is given to him by the strict letter of the statute. It is not such a right as is intended to be protected by the act, but is one created by the act. He has in a certain sense an inchoate right when he hrings his suit, that is, the bringing of the suit designates him as the man thereafter exclusively entitled to sue for that particular penalty ; hut he has no vested right to the penalty until judgment. Until it becomes vested, we think it can be destroyed by the legislature. If the penalty had teen reduced to judgment, or had been given to the injured party in the nature of liquidated damages, the case would he essentially different." In that case the act of remission was passed while the action vras pending in the justice's court, and before judgment. In the case at bar, the act was passed after judgment in the .justice's court, and while the action was pending on appeal in the Superior court. Upon the trial in the latter court, all the issues involved in the case before the magistrate were found for the plaintiff. It thus appears that no error was found in the justice's judgment, which neither was, nor could have been, reversed upon its original merits. It therefore stands in full force and effect, subject only to the plea in bar of the remitting statute, upon which alone the judge below based his judgment in favor of the defendant. This brings us to the consideration of the nature of a judgment obtained before a justice. of the peace, and the effect thereon of an JSeC. 2.] BY JUDICIAL PROCEEDINGS. Ill appeal to the Superior court. If such a judgment is a final judg- ment, that is, a judgment finally disposing of the subject-matter of the action, subject only to reversal on appeal, and remains in full force and effect until such reversal, notwitstandnig the mere fact of appeal, then, in our opinion, it becomes a vested right of property in the plaintiff that cannot be divested except by a re- versal on its original merits. In other words, the plaintiff cannot be divested of his property therein by merely legislative action. Of course if the plaintiff had failed to recover before the justice of the peace, and had himself appealed, he would have had no vested right, as he would have had no judgment to which such a right could attach. He would have only a qualified right of action, exclusive as far as the particular penalty is concerned, but sub- ject to loss by legislative interference. A judgment of a justice of the peace is a final judgment when it fully disposes of the sub- ject-matter of the action, since, unless reversed on appeal, it finally determines the rights of the parties. An appeal to the Superior court does not vacate the judgment, nor even suspend its opera- tion. Code, s. 875. [The North Carolina statutes and cases on judgments of justices of the peace are commented on, and the opinion proceeds:] We are, therefore, of the opinion that when the plaintiff obtained judgment for the penalty before the justice of the peace, he acquired a vested right of property that could be divested only by judicial, and not by legislative, proceedings. On the issues foimd in the Superior court, judgment should have been rendered for the plaintiff, and its judgment is therefore reversed. See also Norris v. Crocker, 13 Howard, 429. The principal case is approved In Bray v. "Williams, 137 N. C. 387, 49 S. E. 887, which also holds that an act of the legislature repealing a penal law after action brought for the penalty, cannot be attacked upon the ground that it was Introduced and passed through the efforts of the defendant who is sued for the penalty. The repealing act relieves the defendant of all costs in the absence of a contrary provision. Ibid. See "Constitutional Law," Century Dig. § 233; Decennial and Am. Dig. Key No. Series, § 104. Sec. 2. When Both Criminal and Civil Actions Lie. Merger. ' ' In all cases the crime includes an injury ; every public offense is also a private wrong, and somewhat more; it affects the indi- vidual, and it likewise affects the community. Thus treason, in imagining the king's death, involves in it conspiracy against an individual, which is also a civil injury ; but, as this species of trea- son in its consequences principally tends to the dissolution of gov- ernment, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by 112 BY JUDICIAL PROCEEDINGS. [Ck. 2. being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view ; it is an injury to private property ; but were that all, a civil satisfaction in damages might atone for it; the public mischief is the thing, for the prevention of which our laws have made it a capital offense. In these gross and atrocious injuries the private wrong is swallowed up in the public : we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great. And, indeed, as the public crime is' not otherwise avenged than by forfeiture of life and prop- erty, it is impossible afterwards to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so severe, but it affords room for a private compensation also; and herein the distinction of crimes from civil inj^uries is very apparent. For instance: in the ease of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment; and the party beaten may also have his private remedy by action of tres- pass for the injury which he in particular soistains, and recover a civil satisfaction in damages. So, also, in case of a public nuisance, as digging a ditch across a highway, this is punishable by indictment, as a common offense to the whole kingdom and all his majesty's subjects; but if any individual sustains any special damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong." 4 Blk. Com. *6. BD. OP COMRS. V. WHITE WATER V. C. CO. and COFFIN, 2 Ind. 162, 163. 1850. Indictment and Civil Action for Same Offence. [The plaintiffs sued the defendants in case founded on tort. Judg- ment against plaintiffs, who carried the case to the Supreme court by writ of error. Reversed. The declaration alleged, in substance, that the defendant had cut a canal across the public highways which were under the care of the plaintiffs, and which plaintiffs were bound to repair; that thereby the highways In question were rendered unfit for travel; that the plaintiffs had been forced to spend twenty thousand dollars for bridges, etc., In order to restore the highways. The defendants filed a general demur- rer to the declaration, which demurrer was sustained in the court he- low. Only so much of the opinion is here Inserted as bears upon the subject under consideration.] Blackfoed, J. . . . We see no substantial objection to the first count as respects the defendant, CofSn. By making the canal across said highways, he has, for aught that appears, created a public nuisance He may be indicted for such nuisance, because of the injury it occasions to the public generally. 4 Bl. Com. 167; Sec. 2.] BY JUDICIAL PROCEEDINGS. 113 R. S. p. 974. He is also liable, in a civil suit, to aiiy person who may have sustained any special damage by the offense. Thus, where a person driving laden asses was delayed several hours in conse- quence of the defendant 's keeping a gate shut across a highway, it was held that an action on the case would lie for the particular damage thus sustained. Greasly v. Codling et al., 2 Bing. 263 ; see also Martin v. Bliss, 5 Blackf. 35. . . . Judgment reversed. See "Highways," Century Dig. §§ 440, 444; Decennial and Am: Dig. Key No. Series, §§ 160, 163. WHITE V. FORT, 10 N. C. 251, 262-265. 1824. Merger of the Civil Into the Criminal Action. [Trespass vi et armis for burning plaintiff's tavern and furniture. Verdict for plaintiff subject to the court's opinion on a point reserved. The court being of opinion that plaintiff could not maintain this action, because the charge against the defendant amounted to a felony for which the defendant had not been tried under an indictment, renderecV judgment against the plaintiff. Plaintiff appealed. Reversed. It appeared in evidence that the tavern was situated a short distanci from the house in which plaintiff and his family lived; that one ot plaintiff's household slept in the tavern, and that travelers who became plaintiff's guests slept there; that the burning was done "privately in the night;" that plaintiff had preferred to the grand jury a bill of indictment against the defendant for arson in burning the house, whic/^ was returned "not a true bill;" and that no other criminal proceedings were had upon the charge.] Taylor, C. J. The two objections taken to the plaintiff's re- covery are that the civil trespass is merged in the felony, a prose- cution for which ought first to have been regularly had to the con- viction or acquittal of the defendant ; and that the rejection of the bill by the grand jury is not a sufficient compliance with the law to enable the plaintiff to maintain the action. It is difficult to ascertain with precision the source whence the doctrine of merger was derived. As it exists only in those cases where forfeiture is the consequence of attainder or conviction, a presumption is furnished that the primary object was to cause persons to prosecute crimes, and thereby to increase the resources of the crown ; on the other hand, as forfeitures were annexed only to the higher crimes, treason and felony, the suppression of which was most essential to the peace and welfare of society, the civil remedy may have been suspended in order to prompt the injured to bring oifenders to justice; not to increase the treasure of the sovereign, but to guard society against the effects of these more aggravated and, in early ages, more frequent offenses. Many offenses below the grade of felony are now more dangerous to so- ciety than many felonies; and when it is inquired why the civil remedy is not suspended in them until the offender is brought to trial criminally, the answer is, such offenses have grown out of Remedies — 8. 114 BY JUDICIAL PROCEEDINGS. [Gh. 2. the artificial state of society, and were unknown to the rude sim- plicity of its early condition. In that, robbery and rapine were the crimes to be punished; in its more advanced stages, artifice and fraud. "Whatever may have been the origin of the rule, there are ample proofs scattered through the books of its having been a fixed rule of the common law before the period of our revolution; and that in cases of conviction trover or trespass would lie against the wrongdoer. The principle of the action is referred to the policy of eifeeting the punishment of felons, and preventing the injured party from compounding them. Lofift. 90. There are dicta, but no adjudged case, countenancing a suit after acquittal until that cited from 12 East. What is said in that case is so strong, and to my mind unanswerable, as to conclude the question. "All the cases which show that an action lies after the conviction of the defendant for the felony apply strongly in support of it after acquittal; for it is a stronger case to permit the party injured to proceed upon his civil remedy to recover damages after a convic- ton of the offender when the law has, by means of the forfeiture of his propertj'^ consequent upon a conviction, taken away from him the means of satisfying the damages. Besides, when a de- fendant, after an acquittal of the felony, is called upon to make recompense in civil damages to the party grieved, it would be stranger for him to be permitted to allege that he was not properly acquitted than in the case it would be to allege that he had not been properly convicted. And here the defendant cannot say, against the record of acquittal, that this was a felony." If this suspension of the remedy was the consequence of for- feiture alone. I should hold that it had no existence here ; but I cannot satisfy myself that it is so. On the contrary, it appears to me to be one among the many inducements held out by the general policy of the criminal law for persons to prosecute. The rewards and immunities given to persons who bring offenders to justice, as well in eases where there is no forfeiture as where there is, afford abundant proofs of this policy. I cannot think that forfeiture has liad any force in this state since 1778, when it ivas declared what part of the common law should he in force here. It is not probable that a prerogative should be designedly introduced which a most devoted, but at the same time an enlight- ened, supporter of the throne pronounced an "odious one." Lofft. 90. It was introduced originally to increase the king's ordinary revenue, a branch of which it constituted; and if such means of increasing the revenues of the state rightfully existed, it would not have been overlooked by the succession of able men who have filled the office of attorney general at different periods. Yet, with exceptions of the confiscations and attainders during the war, not a single instance has occurred in the memory of any one wherein a forfeiture has been exacted. Yet some unfortunate persons have fallen victims to the law. leaving wealth which is now enjoyed by their nosterity. I lay no stress on the two acts which have been passed, suggested, no doubt, by the fears of relations and creditors Sec. 3.] BY JUDICIAL PROCEEDINGS. 115 and obtained from abundant caution. They ought not to be con- sidered as legislative declarations that forfeitures existed, for every one knows how little interest is taken in private acts gen- erally. As to the manner in which the injured party shall prosecute, it is vain to search the books, because instances of suit after acquittal have only recently occurred. All that good sense and reason seem to require is that the matter should be first heard and disposed of before a criminal tribunal. If the party prefer an accusation in good faith, although the bill should be rejected by the grand jury, he has done as much as he can towards prosecut- ing, and has satisfied the policy of the rule. In England he might have his appeal, but here he can do nothing more than has been done in this case. I think the plaintiff is entitled to judgment. For valuable information on the subject of merger or suspension of the civil remedy where the injury amounted to a felony, see Hyatt v. Adams, 16 Michigan, at p. 185, and B. & W. R. R. v. Dana, 1 Gray, 83. The doctrine does not obtain as part of the common law in Massachu- setts, 1 Gray, 83. See Bishop Grim. Law (8 Ed.), s. 267, for the con- fusion which exists in the common law as to the merger of the civil remedy into criminal prosecution. The Revisal of 1905, s. 353, abol- ishes the doctrine of merger In such cases. See, also, 1 Cyc. 681; 20 Am. & Eng. Enc. L. 600. See "Action," Century Dig. § 25; Decennial and Am. Dig. Key No. Series, § 5. Sec. 3. Change op Remedy by Statute. BRONSON V. KINZIE, 1 Howard (U. S.) 311, 315, 317, 318-320. 1843. To What Extent the Legislature May Change the Remedy. [In 1838 Kinzie made a mortgage to Bronson. In February, 1841, the legislature passed an act allowing mortgagors and their judgment cred- itors to redeem lands sold under decree of foreclosure, upon certain terms. Bronson had filed a bill for foreclosure before the act of 1841 was passed. The case went to the supreme court upon a division of opiuion. The question presented is: Was the act of 1841 a valid change in the remedy. Only a portion of the opinion is here inserted.] Taney, C. J. . If the laws of the state passed after- wards had done nothing more than change the remedy upon con- tracts of this description, they would be liable to no constitutional objection. For, undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly 116 BY JUDICIAL PE0CEEDIN6S. [CV(. 2. belonging to the remedy, to be exercised or not by every sov- ereignty, according to its own views of policy and humanity. It mnst reside in every state to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those purr suits which are necessary to the existence and well-being of every community. And, although a new remedy may be deemed less con- venient than the old one, and may in some degree render the re- covery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the rem- edy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by act- ing on the remedy or directly on the contract itself. In either ease it is prohibited by the constitution. . . It is difficult, perhaps, to draw a line that would be applicable in all cases between legitimate alterations of ^;he remedy, and pro- visions which, in the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under, it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the pro- ceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts abrogated and void, and one which takes away all remedy to enforce them, or encumbers it with conditions that render it useless or im- practicable to pursue it. . . "We proceed to apply these principles to the case before us. Ac- cording to the long-settled rules of law and equity in all of the states whose jurisprudence has been modeled upon the principles of the common law, the legal title to the premises in question vested in the complainant upon the failure of the mortgagor to comply with the conditions contained in the proviso; and at law he had a right to sue for and recover the land itself. But in equity this legal title is regarded as a trust estate, to secure the payment of the money; and, therefore, when the debt is discharged, there is a resulting trust for the mortgagor. Conard v. The Atlantic Ins. Co., 1 Pet. 441. It is upon this construction of the contract that courts of equity lend their aid either to the mortgagor or mort- gagee, in order to enforce their respective rights. The court will, upon the application of the mortgagor, direct the reconveyance of the property to him, upon the payment of the money ; and, upon the application of the mortgagee, it will order a sale of the prop- erty to discharge the debt. But, as courts of equity follow the law, they acknowledge the legal title of the mortgagee, and never deprive him of his right at law until his debt is paid; and he Is entitled to the aid of the court to extinguish the equitable title of the mortgagor, in order that he may obtain the benefit of his security. For this purpose, it is his absolute and undoubted right, under an ordinary mortgage deed, if the money is not paid at the appointed day, to go into the court of chancery and obtain its Sec. 3.] BY JUDICIAX, PROCEEDINGS. 117 order for the sale of the whole mortgaged property (if the whole is necessary), free and discharged from the equitable interest of the mortgagor. This is his right by the law of the contract ; and it is the duty of the court to maintain and enforce it, without any unreasonable delay. "When this contract was made, no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. None such, at least, has been brought to the atten- tion of the court; and it must, therefore, be governed, and the rights of the parties under it measured, by the rules above stated. They were the laws of Illinois at the time ; and, therefore, entered into the contract and formed a part of it, without any express stipulation to that effect in the deed. Thus, for example, there is no covenant in the instrument giving the mortgagor the right to redeem, by paying the money after the day limited in the deed and before he was foreclosed by the decree of the court of chancery : yet no one doubts his right or his remedy, for, by the laws of the state then in force, this right and this remedy were a part of the law of the contract, without any express agreement by the parties. So, also, the rights of the mortgagee, as known to the law, required no express stipulation to define or secure them. They were an- nexed to the contract at the time it was made, and formed a part of it ; and any subsequent law, impairing the rights thus acquired, impairs the obligation which the contract imposed. This brings us to examine the statutes of Illinois which have given rise to this controversy. As concerns the law of February 19, 1841, it appears to the court not to act merely on the remedy, but directly upon the contract itself, and to engraft upon it new conditions injurious and unjust to the mortgagee. It declares that, although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable estate of the mort- gagor shall not be extinguished, but shall continue for twelve months after the sale ; and it moreover gives a new and like estate, which before had no existence, to the judgment creditor, to con- tinue for fifteen months. If such rights may be added to the orig- inal contract by subsequent legislation, it would be difficult to say at what point they must stop. An equitable interest in the prem- ises may, in like manner, be conferred upon others; and the right to redeem may be so prolonged as to deprive the mortgagee of the benefit of his security, by rendering the property unsalable for anything like its value. This statute gives to the mortgagor and to the judgment creditor an equitable estate in the premises, which neither of them would have been entitled to under the original contract; and these new interests are directly and materially in conflict with those which the mortgagee acquired when the mort- gage was made. Any such modification of a contract by subse- quent legislation, against the consent of one of the parties, un- questionably impairs its obligations, and is prohibited by the con- stitution. The second point certified arises under the law of February 27, 1841. The observations already made in relation to the other act 1]8 BY JUDICIAL PROCEEDINGS. [Cll. 3. apply with equal force to this. It is true that this law apparently acts upon the remedy, and not directly upon the contract. Yet its effect is to deprive the party of his pre-existing right to foreclose the mortgage by a sale of the premises, and to impose upon him conditions which would frequently render any sale altogether im- possible. And this law is still more objectionable, because it is not a general one, and prescribing the mode of selling mortgaged premises in all cases, but is confined to judgments rendered, and contracts made, prior to the 1st of May, 1841. The act was passed on the 27th of February in that year; and it operates mainly on past contracts, and not on future. If the contracts intended to be affected by it had been specifically enumerated in the law, and these conditions applied to them, while other contracts of the same description were to be enforced in the ordinary course of legal proceedings, no one would doubt that such a law was uncon- stitutional. Here a particular class of contracts is selected, and in- cumbered with these new conditions ; and it can make no difference, in principle, whether they are described by the names of the par- ties, or by the time at which they were made. . . . See Myers y. K. Trust Co., 139 Fed. Ill, 1 L. R. A. (N. S.) 1171, and note: Harrison v. R. Paper Co., 140 Fed. 385, 3 L. R. A. {N. S.j) 954, and note; Best v. Baiimgardner, 1 L. R. A. 356, and note; 4 Rose Notes, 253 et seg.; « Cyc. 995, and notes. 8eC. 1.] CONCERNING REAL ESTATE. 119 CHAPTER III. REMEDIES CONCERNING REAL ESTATE. Sec. 1. Writs of Entry, Assize and Right. DEN V. MORRIS, 7 New Jeraey Law, 6, 7-10. 1822. Writs of Entry and Assize Explained. [This was an. action of ejectment. In the course ot the opinion is the Hollowing discourse on the ancient writs of Entry and Assize.] Kirkpatrick, C. J. . By the common law, estates of freehold in lands passed by livery of seisin only ; that is, by a de- livery over of the actual possession. He, therefore, who was in the actual possession of land, was, prima facie, the tenant of the freehold, and had in him the heritable seisina facit stipitem. If he were oustedor dispossessed of this freehold, by one who had no right, he might, without process of law, make a peaceable entry, or, if deterred from that, he might make claim from year to year, which was called continual claim, as near the land as he could, and such entry or claim restored him to his lawful seisin, and made him capable again of conveying, transmitting either by descent or pur- chase. This right of entry, though it might be tolled or taken away by a descent cast, and so, generally speaking, must be pur- sued during the life of him that made the ouster, or be forever lost, yet it was limited to no particular period or number of years ; so that if it was not actually lost by descent or otherwise, the lawful owner might, at all times, restore himself by entering upon the wrongdoer, in a peaceable manner, and turning him out, but if he suifered it to be once lost, he could no longer restore himself by his own act, but must have recourse to his action at law. And, in- deed, even where it was not lost, as it but seldom happened that the wrongdoer would tamely submit to be turned out without force, the owner, if his object was to gain the actual possession and enjoyment of the land, and not merely to put himself in the ca- pacity to make a lawful conveyance, was generally obliged to have recourse to such action, and to call to his aid the process of the law, to restore to him that right which he could not obtain by peace- able means without it ; so that, in most cases it may be said, he was l)ut to his action, even when his right of entry was not tolled or taken away. This action might be, in the first place, by Writ of Entry, in which he undertook to prove his own former possession, and that the defendant, or some one under whom he held, had dispossessed 120 CONCEENING EEAL ESTATE. [Ch. 3. him; to which the defendant might answer by denying the fact of the dispossession, or by showing in himself an older and a better possession ; and then, upon the trial, it was adjudged for him who had the clearest right ; or it might be, in the second place, after the reign of Henry II., by Writ of Assize, which went upon the sugges- tion, that the demandant's ancestor had died in possession, and that he was the next heir ; and therefore directed the sheriff to in- quire, by a jury, whether this were so, and, if found for the de- mandant, the land was immediately restored. But still, even if the demandant prevailed in these actions, it only restored to him his former possession, it decided nothing with respect to the right of property; all that he had to show, in order to maintain his suit, was the possession of himself or his ancestor, and this might be overcome by the defendant showing an older and a better posses- sion; for it never was pretended that the demandant's must be such a possession as established the ultimate right : for this, either party might afterwards resort to his Writ of Eight. In these pos- sessory actioiis, therefore, neither the deed of feoffment, by which the estate was created, nor the actual livery of seisin upon such deed were necessarily given in evidence, but the mere possession only. And so also after the 29 Car. II, which directed that all con- veyances of land should be in writing, and not otherwise, it was not necessary, upon the same principle, to give the writing in evidence, and the reason was that the deed of feoffment and livery of seisin thereupon, in ancient times, and the written conveyance under the statute, related to and were evidence of, the commencement of the estate, and of the ultimate right only, which was not at all in ques- tion ; but that they could be no proof of the actual and subsequent possession upon which the ouster was alleged to have been commit- ted, and which was the foundation of those possessory actions, and the only thing to be proved in them, or recovered by them. It is true that those might be given in evidence, and might greatly strengthen the proof of possession, but they were not essential to the maintenance of the action ; that depended upon the mere pos- session. To these real actions for the recovery of the possession of lands, succeeded, in common use, the action of ejectment. This was not originally devised as a remedy for injuries done to real estates, that is, to estates of freehold in land, but as a remedy for injuries done to chattels real, such as terms for years, which were considered as mere chattel interests. But then, as one who came into a court of justice to complain that he had been ousted of his term, must neces- sarily show that such term existed, and that the lease under which he claimed was a good and valid lease, and, of course, that the lessor had a right to make it, the title of the lessor was thereby brought into question, as fully and upon the same principles as it would have been in the real action; so that though the action of ejectment got clear of all the intricacy and perplexity of the real action, and so became an easy and expeditious method of trying the title to land, yet it required precisely the same proof of title Sec. 1.] CONCEKNING REAIi ESTATE. 121 in substance as the real action did. For though the form of action may have been changed, yet the great principles of right have not been changed, nor can they be without a total subversion of the whole system of property in land. In a real action, the demandant must show his possession, his ouster, and his right to re-enter ; in an ejectment, the lessor of the plaintiff must show the very same thing — he must show that he has been in possession of the land; that it is now withholden from him, which is an ouster ; and that he had a right to re-enter and make the lease in question. I say he must show those things, for the lease, entry and ouster, which are confessed, are the mere form of the action, and have nothing to do with the substantial right. The title, therefore, which the lessor of the plaintiff, by the consent rule, is bound to rest upon, and which he is obliged to make out at the trial, is his right of entry (for if he had this right, it is always confessed that he had a right to make, and did make the lease) a right which, upon the principles of the common law, necessarily results from his having had an anterior and peaceable possession of the lands in question, and their being now withholden from him by the defendant; a right to which cannot be overcome by any subsequent possession, unless it has been tolled or taken away in the manner before men- tioned, or is restrained by the statutes of limitation. . . . See "Entry, Writ of," Century Dig. § 1; Decennial and Am. Dig. Key No. Series, § 1; "Ejectment," Century Dig. §§ 30-40; Decennial and Am. Dig. Key No. Series, § 10. GREEN V. LITER, 8 Cranch, 229, 244. 1814. Writ of Right Explained. [Writ of rigiit brought by Green, the demandant, against the tenants to recover seisin of lands in Kentucky. The writ was sued out under the Virginia statute regulating the practice in such cases. The case was carried to the supreme court of the United States, from the United States circuit court for the Kentucky district, upon a division of the lower court upon certain questions of law. In the opinion appear the following observations upon the ancient Writ of Right.] Stoey, J. . . . The fifth question is that which has been deemed most important ; and to this the counsel on each side have directed their efforts with great ability. It is clear, by the whole current of authority, that actual seizin, or seizin in deed, is, at common law, necessary to maintain a Writ of Right. Nor is this peculiar to actions on the mere right. It equally applies to writs of entry; and the language of the count, in both eases, is, that the demandant, or his ancestor, was, within the time of limitation, seized in his demesne as of fee, etc., taking the esplees, etc. It is highly probable that the foundation of this rule was laid in the earliest rudiments of titles at the common law. It is well known that, in ancient times, no deed 122 CONCERNING KEAh ESTATE. [Ch. 3. or charter was necessary to convey a fee simple. The title, the full and perfect dominion, was conveyed by a mere livery of seizin in the presence of the vicinage. It was the notoriety of this ceremony, performed in the presence of his peers, that gave the tenant his feudal investiture of the inheritance. Deeds and charters of feoffment were of later age; and were held not to convey the estate itself, but only to evidence the nature of the conveyance. The solemn act of livery of seizin was absolutely necessary to produce a perfect title, or, as Pleta calls it, juris et seisinae conjunctio. But whatever may be its origin, the rule as to the actual seizin has long since become an inflexible doc- trine of the common law. It has been argued, that the act of Virginia, of 1786, c. 27, meant in this respect to change the doctrine of the common law, because that act has given the form of the count in a writ of right, and omits any allegation of seizin and taking esplees. There is certainly some countenance in the act for the argument. But, on mature consideration, we are of the opinion that it can- not prevail. The form of joining the mise in a writ of right, is also given in the same act; and that form includes the same inquiry, namely, "which hath the greater right," as the forms at common law. It would seem to follow that the legislature did not mean to change the nature of the facts which were to be inquired into, but only to provide a more summary mode of proceeding. The clause in the same act allowing any special matter to be given in evidence on the mise joined, may also be called in aid of this construction. That clause certainly shows that it was not intended to relieve the demandant from the effect of any existing bar; and want of seizin was, at common law, a fatal bar. The statute of limitations of Virginia, of 19th De- cember, 1792, c. 77, which, as to this point, is a revisal of the old statute, limits a writ of right upon ancestral seizin, to fifty years, and upon the demandant's own seizin, to thirty years next before the teste of the writ. It is, therefore, incumbent on the demandant to prove a seizin within the time of limitation; otherwise, he is without remedy ; and if so, it must be involved in the issue joined on the mere right. We are therefore of opinion, that the act of 1786 did not mean to change the nature of the inquiry as to the titles of the parties, but merely to remedy some of the in- conveniences in the modes of proceeding. If then an actual seizin or seizin in deed be necessary to be proved, it becomes material to inquire what constitutes such a seizin. It has been supposed, in argument, that an actual entry under title, and perception of esplees Avere necessary to be proved in order to show an actual seizin. But this is far from being true, even at the common law. There are eases in which there is a constructive seizin in deed, which is sufficient for all the purposes of action in le^al intendment. In Hargrave 's note, 3 Co. Litt. 29, a, it is s^id. that an entry is not always necessary to give a seizin in deed; for if the land be in lease for year. 284 CONCERNING HEAL ESTATE. [CJl. 3. covenant of the testator ; and the pleadings disclose these facts : By lease and release of the 6th and 7th of October, 1794, T. Worge and Griffith and his wife conveyed certain premises to J. King ; and Griffith covenanted with J. King that he and Mary, his wife, would do all reasonable acts for the further conveyance of the premises. The pleadings further disclose, that there was a request made by J. King, the ancestor, to Griffith, to levy a fine ; that no fine was levied; that J. King the ancestor died; and the premises descended to the plaintiff as the heir of J. King, and that the plain- tiff has since been evicted ; and the question is, whether the plain- tiff can sustain this action. It was admitted that this is a covenant which runs with the land. Under this covenant the heir might call for further assurances, even to levy a fine ; he certainly might have called for the removal of a judgment, or other incumbrances. It appears that J. King, the ancestor, was a willing purchaser ; he paid his purchase money, relying on the vendor's covenant; he re- quired him to perform it, but gave him time, and did not sue him instantaneously for his neglect, but waited for the event. It was wise so to do, until the ultimate damage was sustained ; for other- wise he could not have recovered the whole value : the ultimate damage, then, not having been sustained in the time of the ancestor, the action remained to the heir (who represents the ancestor in respect of land, as the executor does in respect of personalty) , in preference to the executor. These are the principles of the case-, how are the authorities ? There are few old authorities directly in point, but there is one recent case that is directly applicable. The old authorities are. Fitzherbert, N. B. Writ of Covenant, p. 341, C. "if a man make a covenant by deed to another, and his heirs, to enfeoff him and his heirs of the manor of D, etc., now, if he will Tiot do it, and he to whom the covenant is made dieth, his heir shall have a writ of covenant upon that deed : " he cites the case of Sir Anthony Cook, Dy. 337, also reported in Anders. 53. (Here his lordship read the case.) The recent decision is that of Kingdon T. Nottle, last Easter term, 1 Maule & Selwyn, 355, wherein the court of King's Bench held that the executor could not recover upon a breach of defendant's covenant with the testator, that he, the defendant, had a good title to convey, the testator having sus- tained no damage in his lifetime, therefore it follows that the heir might so recover. The court there follow the doctrine of Lucy v. Livingston, and they advert to the circumstance which differs that ease from this, that there the ultimate damage was sustained in the time of the ancestor, and therefore the land did not descend to the heir ; consequenly the covenant, which runs with the land, did not descend to the heir. The consequence is, that this judgment ought not to be arrested, and that the rule must be discharged. This case is approved by later English authority and in Martin v. Baker, 5 Blackford, 232, cited in the note to the next preceding case; See "Executors and Administrators," Century Dig. §§ 301-305; Decennial and Am. Dig. Key No. Series §§ 49-51. Sec. 18.] CONCERNING REAL ESTATE. 285 TUITE V. MILLER, 10 Ohio, 382, 383. 1841. Remedy in Equity on Covenants. Further Assurance. ' [Bill in chancery asking for relief against the covenantor in a covenant Of warranty. Bill dismissed.] Lane, C. J. There is a well established chancery jurisdiction over certain covenants. The chancellor will exercise a restraining power where the covenantor, contrary to his stipulation, disturbs the tenant by his own act ; and he will enforce the specific perform- ance of the covenant for further assurance. But we find no case of interference on this side the court, in relation to the covenant of warranty. This absence of precedent, although not conclusive, is a strong argument against the plaintiff 's right to relief. . See "Covenants," Century Dig. § 170; Decennial and Am. Dig. Key No, Series § 104. Sec. 18. Moetgagbe's Eembdies. SLAUGHTER, Assignee, v. FOUST et al., 4 Blackford, 379, 381. 1837. Mortgagee's Remedies at Law and in Equity. Foreclosure. Parties. [Bill in equity to foreclose a mortgage. Bill dismissed. Plaintiff ap- pealed. Reversed. Plaintiff purchased two notes secured by mortgage, and brought this bill against the widow, heirs at law, and administrator of the deceased mortgagor. The point was made (among others not necessary to con- sider), that the personal representative was improperly joined as a de- fendant. That portion of the opinion which discusses this point is In- serted. The remedies afforded a mortgagee are explained.] Dewey, J. . . . The demurrer should have been allowed, for another reason, as to one of the defendants — the administrator ; he should not have been a party to the suit. A mortgagee has three modes of enforcing satisfaction of his de- mand, to which he may resort concuiTently, or separately, at his election: he may bring e.jectment and thus acquire the rents and profits of the mortgaged premises until his debt be satisfied; or he may sue at law on the evidence of his claim, in which case he looks, in the first instance, to the personal property of the mort- gagor ; or he may, by a proceeding in chancery, enforce his lien on the land. The result of this latter process, in England, is generally a strict foreclosure of the equity of redemption of the mortgagor, and the investment of an absolute estate in the morgtgaged prem- ises in the mortgagee. Under the law of this state the equity of re- demption is also foreclosed ; but the land is .sold for the satisfaction of the debt, and the overplus arising from the sale, if any, is re- turned to the mortgagor. This difference in the result, however, does not change the character of the proceeding; which, in both countries, is in rem, and has in view the satisfaction of the debt from the land. If the mortgagor be dead, the remedy is still 286 CONCERNING REAL ESTATE. [CJl. 3. against the land and seeks not to meddle with the personal assets. It is, therefore, well settled by the English practice, that the heir, in whom is the equity of redemption, is the only proper defendant in a bill of mere foreclosure. 3 Powell on Mort. Rand 's Ed. 969 ; Bradshaw v. Outram, 13 Ves. 239; Buncombe v. Hansley, 3 P. Will. 333, n. It is true that, in England, there are some exceptions to this rule of strict foreclosure ; as, for instance, when in consequence of the inadequacy of the security arising from the mortgage, the mort- gagee, in his bill, prays an account of the personal estate as well as a sale of the land. To such a bill the executor should be a party with the heir ; but the reason of .joining them as defendants is not because a sale of the land may be decreed, but because, in addition to the land, the bill seeks to appropriate the personal assets, of which the executor is the representative, to the satisfaction of the debt. 3 Powell on Mort. Rand's Ed. 969; Daniel v. Skipwith, 2 Bro. C. C. 155 ; Fell v. Brown, lb. 276. It has also been held that where the bill contained an averment, that the executor had been in the receipt of the rents and profits of the mortgaged premises, and had paid the interest and part of the debt, it was necessary to make him a party. Cholmondeley v. Clinton, 2 Jac. & Walk. 135. The case before us does not come within the reasons of these excep- tions. They aimed at the personalty as well as the pledged land. This bill affects only the latter. In Virginia and Maryland, the law respecting the sale of mort- gaged premises on a bill of foreclosure is similar to ours. In each of those states, it has been held that it is not proper to join the personal with the real representative of a deceased mortgagor, in proceedings to enforce the lien. Graham v. Carter, 2 Hen. & Munf . 6 ; David v. Grahame, 2 Harr. & Gill, 94. It has been urged that our probate act, bj^ enabling the executor or administrator to convert the real estate of a decedent into as- sets, when the personal property is insufficient to pay his debts, has rendered it necessan- to make the personal representative a party to a bill of foreclosure and sale. There would be strength in this position, if that law destroyed the lien of a rnortgagee upon the land mortgaged, or compelled him first to look to the personal estate. In our opinion it does neither; but on the contrary,, we Ihink the ob.iect of its provisions on this subject, was to guard and protect specific liens on the real estate of a deceased person. Nor do we conceive that the right of the mortgagee to proceed to fore- closure and sale, without making the personal representative a party, can interfere with the contingent right of the latter to con- vert the estate into assets for the payment of debts, whenever he may discover the inadequacy of the personalty for that purpose. It not being necessary or proper to make the administrator a party to the bill, this suit is not embraced in that provision of the statute, which forbids an action to be brought against an executor or administrator until after the lapse of one year from the date of his appointment. Under this view of the subject the plea is a nullity. Sec. 18.] CONCERNING EEAL ESTATE. 287 I'er Curiam. The decree is reversed with costs, etc. Cause re- manded, etc. The demurrer, except as to the administrator, to be disallowed, and the plea set aside. "The jurisdiction o£ equity in mortgages Is simply to decree redemption ■or foreclosure. To that end, the court directs accounts to be taken of the sum due, in order that it may be linown how much the mortgagor must pay to entitle him to a reconveyance, or to prevent his equity of redemp- tion being foreclosed. Of late years a beneficial practice has gained favor, until it may be considered established in this country, not abso- lutely to foreclose in any case, but to sell the mortgaged premises and apply the proceeds in satisfaction of the debt; if the former exceed the latter, the excess is paid to the mortgagor; if it fall short, the creditor then proceeds at law on his bond or other legal security, to recover the balance of the debt. Gillis v. Martin, 17 N. C. 470. In Lansing v. Goelet, 9 Ck)wen, 346, Chancellor Jones treats the subject much at large and with great learning." Fleming v. Sitton, 21 N. C. at p. 623. As to making the personal representative of the deceased mortgagor a party, see note to the next succeeding case, and Mebane v. Mebane, 80 N. C. 34, Inserted post In this section. See "Mortgages," Century Dig. § 1244; Decennial and Am. Dig. Key No. Series § 419 GAMMON V. JOHNSON, et al., 126 N. C. 64, 35 S. E. 185. 1900. Parties to Foreclosure Proceedings. Disposition of Surplus. [Action to foreclose a mortgage. Order allowing a creditor, having a lien by docketed judgment, to be made a party. Plaintiff excepted and appealed. Affirmed and appeal dismissed.] Clark, J. In general, all incumbrancers, whether prior or sub- sequent incumbrancerSj as well as the mortgagor, should be parties to a proceeding for foreclosure ; and judgment creditors as well as mortgagees. Hinson v. Adrian, 86 N. C. 61 ; LeDuc v. Brandt, 110 N. C. 289, 14 S. E. 778. This is because the liens, by the sale, are transferred from the corpus to the fund into which it is converted, with their respective priorities preserved, and to be asserted in the decree for distribution. Cannon v. Parker, 81 N. C. 320. "In effect, the lien of a docketed judgment is in the nature of a stat- utory mortgage" (Manufacturing Co. v. "Wilcox, 111 N. C. 42, 15 S. E. 885), though the judgment conveys no estate in the land (Baruch v. Long, 117 N. C. 509, 23 S. E. 447). The lien of the judgment creditor being transferred to the proceeds of sale, sub- ject only to the priority of the plaintiff's mortgage, the j^udgment creditor was a proper party, as against the defendant, to receive the amount due him out of the surplus after the payment of plain- tiff ; else, such surplus would go into the hands of the defendant, to the destruction of the lien of the judgment creditor, who was also a proper party, as against the plaintiff, that he might assert the credits which should be charged against the plaintiff by reason of timber cut on the land, since by so doing the surplus to be applied to the judgment, as the second lien, will be swollen. This is not bringing a new cause of action, but it is a neeessarj' step in the just and proper distribution of the fund according to the priorities 288 CONCERNING REAL ESTATE. [Cll. 3. of the liens upon the land, whose sale produced the fund. The petition set out the judgment creditor's ground for asserting a credit to be charged against the plaintiif, and, if denied, an issue is presented for settlement before the fund is distributed. It is not a debt against the plaintiff, which would be an alien cause of action, but a claim of a larger share in the fund because of a credit which should be charged against the first lien. The petition to be made an additional party does not controvert the cause of action set up in the plaintiff's complaint, and hence is not required to be verified. Code, §§ 189, 273. Indeed, upon the facts being made known to the court in any satisfactory man- ner, it could and should, ex mero motu, have ordered the judg- ment creditor made a party, that there should be a full and com- plete settlement of the rights of all parties holding liens upon the fund. Pitt V. Moore, 99 N. C. 85, 5 S. B. 389 ; Kornegay v. Steam- boat Co.. 107 N. C. 115, 12 S. E. 123, and "Williams v. Kerr, 113 N. C. 306, 18 S. E. 501, relied upon by the plaintiff, hold that sub- sequent incumbrancers, while proper parties, are not necessary parties in all eases. The appeal is premature, for the facts as to the alleged credit should have been passed upon, and the party against whom it was found might not have appealed. The plaintiff should have entered his exception to the interlocutory order, and have brought up his appeal only from the final judgment distributing the fund, if the disputed credit was found against him. The point involved in this appeal, however, has been passed upon, as has sometimes been done. Milling Co. v. Finlay, 110 N. C. 411, 15 S. E. 4; Clark's Code (3d ed.), § 548. But it must be entered. Appeal dismissed. For disposition of the surplus after the satisfaction of the mortgage debt, see Kitchens, v. Jones, 113 S. W. 29, 19 L. R. A. (N. S.) 723, and note; Harrington v. Rawls, 136 N. C. 65; Horr v. Herrington, 98 Pac. 443, 20 L. R. A. (N. S.) 47, and note; 27 Cyc. 1767. "It would seem on. reason and principle, if not on authority," that the personal representative of a deceased mortgagor is a necessary party to an action of foreclosure, McGowan v. Davenport, 134 N. C. mid. p. 533, 47 S. E. 27; so is the heir of the mortgagee, Hughes v. Gay, 132 N. C. 50, 43 S. E. 539. The personal representative of a deceased mortgagee cannot recover the land in ejectment. Ibid. If the bill of foreclosure seeks a sale of the mortgaged property, the personal representative of the deceased mortgagor is a necessary party. Mebane v. Mebane, 80 N. C. 34, inserted post in this section. See "Mortgages," Century Dig. §§ 1268-1291; Decennial and Am. Dig. Key No. Series §§ 426-438. CREDLE v. AYERS, 126 N. C. 11, 35 S. E. 128. 1900. The Several Remedies of Mortgagee. CiimuJative Remedies. Ejectment. Rents and Profits. [Action to recover possession of land. Judgment against defendant, and he appealed. Affirmed. Ayers bought the locus in quo from Credle and agreed to pay for it in installments. The first installment being due and unpaid, Credle brought this action. The defendant gave the bond required of defendants in ac- tions of ejectment. Afterwards the judge ordered this bond to be in- Sec. 18.] CONCERNING REAL ESTATE. 289 creased to $5,000. The plaintiff contended for judgment for the posses- sion of the land and for the actual rental value thereof. The defendant insisted that plaintiff was not entitled to any rents, but could only re- cover the balance of the purchase money and have an order for the sale of the land for the payment thereof. By agreement entered of record the inquiry as to rents was limited to the year 1895.] Clark, J. The vendee having defaulted in payment of the first installment of the purchase money, due November, 1894, the ven- dors ( and their mortgagee, Makely, who had joined in the contract of sale) brought an action of ejectment in December, 1894, at the end of 30 days thereafter, under the terms of the contract. The plaintiffs could have brought their action either (1) for possession of the land; (2) for sale and foreclosure; or (3) in personam, for judgment for the debt ; or for all three. They elected to take the first, and have sued for possession and damages for withholding. Allen V. Taylor, 96 N. C. 37, 1 S. E. 462 ; Silvey v. Axlev, 118 N. C. 959, 23 S. E. 933 The defendant contends that he is not liable for mesne profits, and relies upon Killebrew v. Hines, 104 N. C. 182, 10 S. E. 159, 251 ; Carr v. Bail, 114 N. C. 284, 19 S. E. 235 ; and Hinton v. Wal- ston, 115 N. C. 7, 20 S. E. 164. Those cases hold that a vendee or mortgagor, before or after breach, who is permitted to retain pos- session, is entitled to the rents and profits (unless there is an ex- press stipulation in the contract or mortgage to the contrary, as in Crinklev v. Egerton, 113 N. C. 444, 18 S. B. 669; Jones v. Jones, 117 N. C. 254, 23 S. E. 214) ; but here the withholding by the de- fendant, after action brought in December, 1894, was wrongful, and he became liable, like any other defendant in ejectment, for the mesne profits. For what other purpose than to secure such mesne profits is the defense bond required, under Code, § 237 * Had the bond not been given, or not been raised to $5,000, as required by Ihe court (Eollins v. Henry, 77 N. C. 467), the plaintiffs would have had posses.sion by default (Code, § 390; Norton v. McLaurin, 125 N. C. 185, 34 S. E. 269, and cases cited) ; or if the defendant had been allowed to defend without the bond, by reason of poverty, a receiver would have been appointed to secure the rents and protits (Horton v. White, 84 N. C. 297). This case differs from Leach v. Curtin, 123 N. C. 85, 31 S. E. 269, in that possession is here sued for and demanded in the complaint. The defendants surrendered possession to Makely in May, 1896. That did not release the de- fendant's liability for rents and profits for 1895, during the wrong- ful withholding, unless there had been a stipulation to that effect. Otherwise, any tenant in possession could wrongfully withhold pos- session of land after action brought, and enjoy the rents and profits till forced to trial, and then release himself and bond from liability for mesne profits by abandoning possession. In such ease the plain- tiffs take judgment for the mesne profits till they got possession, and for the title, but not for the possession. Woodley v. Hassell, 94 N. C. 157; Clark's Code (3d ed.), § 384. Under the former prac- tice, in actions of ejectment, damages were recoverable only up to the time action was begun, but under the present system they are Remedies — 19. 290 CONCERNING REAL ESTATE. [Ch. 3. recoverable up to the trial. Pearson v. Carr, 97 N. C. 194, 1 S. E. 916; Arrington v. Arrington, 114 N. C. at page 120, 19 S. E. at page 279; 10 Am. & Eng. Enc. Law (1st ed.), 537; Suth. Dam. § 848. Here, up to surrender of premises, and by agreement in the order of reference, these are restricted to the rents and profits for the year 1895. . . . Affirmed. See Allen v. Taylor, 96 N. C. 37, 1 S. E. 462, inserted at sec. 20, post. See also note to Doe v. Mace, 7 Blackford, 2, 3, inserted ante, at sec. 3. See "Vendor and Purchaser," Century Dig. §§ 832-843; Decennial and Am. Dig. Key No. Series §§ 296-300; "Mortgages," Century Dig. § 482-491; Decennial and Am. Dig. Key No. Series § 213. HARSHAW V. McKesson, 66 N. C. 266. 1872. Foreclosure when the Debt Secured is PayaUe in Installments. [Action to foreclose a mortgage. Judgment against defendant, and he appealed. Reversed. The mortgage debt was payable in installments. The action was brought before all the installments were due, but after one installment was due. The mortgage provided that if the mortgagor chose to pay a part of the debt at any time, he could do so; but there was no clause providing that all the installments should fall due upon default in the payment of any one thereof.] Dick, J. The mortgage executed by the defendant, William F. McKesson to Jacob Harshaw, fixes the time of payment of the debts secured, at three, four and five years in equal installments. This action was commenced before the time of redemption had expired, and one of the questions presented for our consideration is, whether this action can be maintained? A court of equity will never decree a foreclosure until the period limited for payment of the money be passed, and the estate in conse- quence thereof forfeited to the mortgagee, for it cannot shorten the time given by the express covenant and agreement between the parties, as that would be to alter the nature of the contract to the injury of the party aifected. 3 Powell on Mort. 965. If this mortgage had expressly stipulated that the estate should be forfeited on the failure to pay the specified installments of the debts, then on said failure the mortgagee might have called for his money, or proceeded immediately to foreclose. 2 Eden, 197. The time of payment being delayed was evidently the inducement which caused the mortgagor to enter into the contract, and the security thus furnished was satisfactory to the mortgagee. The fact that the mortgagee did not commence his proceedings to foreclose upon the failure of the first payment shows that he understood the agree- ment as is insisted upon by the defendants. If the agreement of the parties was, that the estate should be forfeited upon the failure of the first payment, it could easily have been inserted in the eon- tract. The plaintiffs, if they had seen proper, might have proceeded, in an action at law. to recover the installments as they became due, Sec. 18.] CONCERNING REAL ESTATE. 291 but they could not have proceeded to foreclose until the day of re- demption was passed, and the decree of his honor in this respect is erroneous. As this action was commenced before the plaintiffs were entitled to foreclose the mortgage, the proceedings must be dismissed. Judgment reversed. See Brame v. Swain, 111 N. C. 540, 15 S. B. 938, inserted at sec. 20, post, sustaining the principal case. See 15 L. R. A. (N. S.) 590; 12 lb. 1190; 37 L. R. A. 737; Mcintosh on Cent. 588 and note. See "Mort- gages," Century Dig. § 1162; Decennial and Am. Dig. Key No. Series § 397. MEBANE V. MEBANE, 80 N. C. 34. 1879. The Judgment in Foreclosure. Sale. Report. Confirmation. Married Woman's Land. Mortgaged for Husband's Debt. Parties. [Action to foreclose a mortgage. The court ordered a sale of the mort- gaged property. The property belonged to the wife of the mortgagor, but the debt secured was the debt of the husband. The judgment of fore- closure gave no time for redemption; no report of the sale was required, but the sale was left to the uncontrolled discretion of the commissioner appointed to make the sale; the husband was dead, but his personal repre- sentative was not made a party to the action. After the sale had been made and the land conveyed by the commissioner to the plaintiff, who was the purchaser at the sale, the defendant moved to set aside the sale and for leave to answer the complaint.. She had not answered at the proper time, and the judgment of sale had been rendered by default. She offered excuses for her neglect to answer, and showed to the satisfaction of the court that she had a meritorious defense. The judge vacated the judgment of foreclosure and the sale made thereunder. The plaintiff ap- pealed. Affirmed.] , Smith, C. J. The mortgage on its face shows the debt to be that of the husband alone, and for which defendant was in no manner liable, and contains a clause vesting, on the debtor's default, a power of sale in the mortgagee. The aid of this court, while not necessary for the plaintiff's relief, is nevertheless invoked to give effect to this provision. In directing and controlling the exercise of the power, the court will be guided by those rules of equitable pro- ceedings, not inconsistent with the deed, which are observed in de- crees of foreclosure and sale of property conveyed in mortgages without such power. The judgment in this case does not conform to those rules. 1. The foreclosure is absolute and no time is allowed the mort- gagor to pay the debt and redeem. This is not in accordance with the established practice in courts of equity. "The usual course pursued on foreclosure," says an eminent writer on the law of mortgages, ' ' is for the mortgagee to file his bill praying that an ac- count may be taken of principal and interest, and that the defend- ant may be decreed to pay the same with costs by a short day to be appointed by the court, and in default thereof he may be foreclosed his equity of redemption." And this time is usually six calendar months. Coot's Law of Mort. 492. In Clark v. Reynolds. 8 Wallace, 318, a bill for foreclosure was 292 CONCERNING EEAL ESTATE. [Ch. 3. filed in the circuit court of the United States for the district of Kansas, and a decree was entered giving no time to pay and re- deem, and making the foreclosure unconditional and absolute at once. In delivering the opinion in the supreme court, Mr. Justice Swayne says: "The settled English practice is for the decree to order the amount due to be ascertained and the costs to be taxed, and that upon the payment of both within six months the plaintiff shall reconvey to the defendant, but in default of payment within the time limited, that the said defendant do stand absolutely de- barred and foreclosed of and from all equity of redemption of and in said mortgaged premises. We have been unable to find any English case where in the absence of fraud, a time for redemption was not allowed. ' ' And he adds : " In the light of these authorities we are constrained to hold the decree in the case before us fatally defective." The judgment under consideration is in almost iden- tical words and falls under like condemnation. So in this state. Pearson, C. J., says: "The decree of sale is always after reasonable notice of the decree, say three months, in order to give the mort- gagor an opportunity to raise the money and prevent a sale." Capehart v. Biggs, 77 N. C. 261. 2. No report of sale is required to be made to the court, in order that it may be set aside or confirmed and the title ordered, but this is left to the uncontrolled discretion of the commissioner. This is entirely at variance with the nature of judicial sales. The commis- sioner acts as the agent of the court and must report to it all his doings in execution of its order. The bid is but a proposition to buy, and, until accepted and sanctioned by the court, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed. This power will not be delegated to the agent who exposes the property to public biddings. 2 Jones' Mort, sees. 1608, 1637; Rorer on Jud. Sales, 55, 58. 3. The debt being due from the defendant's husband alone, his personal representative would seem to be a proper if not a neces- sary party. It is true it has been held in Averett v. "Ward, 45 N. C. 192, that the perscfnal representative of the mortgagor and debtor is not a necessary party in a bill to foreclose, or for sale of the premises. But the court adds : " In this state the personal represen- tative of the mortgagor may be made a party, but is not a necessary party." The rule is somewhat differently stated by others. In Fisher on Mort. 84 Law Lib. 159, it is said: "The personal repre- sentative of the mortgagor is not a necessary party for foreclosure simply, or redemption ; but if the object of the suit be to obtain a sale under the mortgage by way of trust for sale, or on the bill of an unpaid vendor of real estate or otherwise, . . the per- sonal representatives of the mortgagor are necessary parties be- cause they are interested in the proceeds of the sale or in the taking of the accounts. " So it is declared that when a wife joins her hus- band in a mortgage of her own estate, and the money is applied for the husband's benefit, the personal estate of the husbandwill be first applied in payment of the mortgage. 1 Greenl. Cruise, 618. SiC. 18.] CONCERNING REAL ESTATE. 293 It would seem to be peculiarly appropriate that the per-sunal repre- sentative of the only person owing the debt and interested in reduc- ing its amount should be before the court and be bound by its de- cree, and thus the measure of his liability to the plaintiff, whose property may be sold to pay it, be definitely ascertained and deter- mined. We have examined the judgment and pointed out some of its departures from the established usage and practice in courts where the relief here sought is afforded, as bearing upon the question of power and propriety of setting it aside. In form the judgment is self-executing and final, leaving nothing further to be done by the court. But if it had been drawn in the usual form, it would have been an interlocutory order which is always subject to revision and control. We see no reason why under such circumstances it may not be dealt with and corrected as if it were what it should have been. The power to modify, change or vacate an interlocutory order made in the progress of a cause is well settled both upon principle and authority. Unlike a judgment at law, it may be moulded and shaped to meet the exigencies of each particular case. Ashe V. Moore, 6 N. C. 383 ; Worth v. Gray, 59 N. C. 4. 4. But a case not unlike ours was before the court at last term, Shinn v. Smith, 79 N. C. 310. The facts so far as necessary to the elucidation of the point we are now considering are these: Smith being indebted, he and his wife united in the execution of a deed conveying lands belonging to her as well as to him to secure the indebtedness. Shinn, an outside creditor, brought his suit against the parties to the mortgage to compel a foreclosure, so that the surplus of the proceeds of sale might be applied to his claim. An order was obtained directing a sale, and that the wife's land should be sold first. The manifest effect and purpose of the order were to have the property of the wife, a surety only, applied in exoneration of the lands of the principal debtor, and that his might be sub- jected to the payment of Shinn 's judgment. The wife on being advised of the nature of this order applied to the court and was made a codefendant. The order of sale was then modified, but, as Shinn alleged, still leaving her property in the front rank of responsibility for the debt due to King. On the proper construc- tion of this modified order Reade, J., delivering the opinion of the court says: "If the modified order in unmistakable terms directed the sale of the wife's land to pay the plaintiff's debt for whicli neither she nor the land was bound, it would have been erroneous. ' ' . . Affirmed. The judgment may, and probably should, be In personam for the mort- gage debt, and should also order a sale for foreclosure. The judgment so rendered in personam now becomes a lien on other lands of the mortgagor from the date of Its being properly docketed. It was otherwise under the practice before the Code. McCaskill v. Graham, 121 N. C. 190', 28 S. E. 264. The judgment in personam for the debt is a final judgmMit, while the judgment for the sate under foreclosure is interlocutory. McCaskill V. McKinnon, Ibid.. 192, 28 S.. E. 265. The old practice in equity was to decree a strict foreclosure; but afterwards that was dropped and a sale' was ordered and the proceeds applied to the mortgage debt. If a baiaaice 294 CONCEKNING REAL ESTATE. [Ch. 3. was left after such application, the mortgagee proceeded in a court of law to recover such balance. Fleming v. Sitton, 21 N. C. 621. See "Mort- gages," Century Dig. §§ 1282, 1423, 1436; Decennial and Am. Dig. Key No. Series §§ 427, 488, 491. PRITCHARD V. ASKEW, 80 N. C. 86. 1879. Foreclosure Sale. Raising the Bid. [Motion in the supreme court to open the biddings and resell land sold by a commissioner under a judgment of that court. The sale was reported and the confirmation recommended by the commissioner. Re- sale ordered. The other facts appear in the opening of that part of the opinion which is here inserted.] DiLLAED, J. ... At this term of the court the plaintiff moves to be allowed to put in an advance bid of ten per cent, upon the price at which the purchasers bought the land, and offers to secure the same with his bond and approved security, and in case the biddings are opened by this court, he agrees at the resale to start the biddings at the advance now offered; and at the same time, the said purchasers oppose the motion to open the biddings and move on their part for a confirmation of the sale which has been had. The parties support their respective motions by affida- vits, and it now becomes our duty to consider the matter submitted to our decision, and thereon to decide, as we may be authorized in view of justice to the parties interested, and in accordance with the rules observed in our courts in the case of judicial sales. In sales of the character of the one under consideration, the bid- der is never considered a purchaser until the sale is reported and confirmed. He is to be taken as becoming the best bidder, sub- ject to the understanding in all cases that the court may confirm the sale or set it aside and order a resale, as in the exercise of a sound discretion it may determine to be right and proper. Wood V. Parker, 63 N. C. 379; Ex parte Bost, 56 N. C. 482; Ashbee v. Cowell, 45 N. C. 158. The court has the power to set aside sales made in pursuance of its authority, either for the owner, or at the instance of the purchaser ; but as a matter of policy it is slow to do so and is careful not to open biddings unless there be some special circumstances, such as unfairness in the conduct of the sale, want of proper notice of the time and place of sale, fraud in the pur- chaser, and palpable inadequacy of price, and similar grounds. Rorer on Jud. Sales, ch. 10, sees. 394-441. In this case it appears that the sale was advertised for the 4th of January, and afterwards changed to the 6th, and that plaintiff had arranged with Mr. Hinton to attend and buy the land, and allow him to have it on reimbursing him, but the inclemency of the weather was very great, and so much ice in the roads and streams as to prevent the attendance of said Hinton and disable plaintiff to. reach the place of sale although he endeavored to do so. From the facts and circumstances, we think it may fairly be presumed that the sale came off without a fair attendance of bidders, and cer- tainly without the presence of Hinton in person, or the plaintiff as Sec. 18.] CONCERNING REAL ESTATE. 295 his agent, who was prepared to give, and is yet willing to give ten per cent, advance, and perhaps more, on the bid of the purchasers that day, and hath secured the pay men I in case a resale is or- dered. We recognize it as good policy in the courts to maintain judicial sales, and to that end, not to open the biddings unless for some cause palpably sufficient ; but in this case the purchaser ought to be content to get the debt he represents, and to allow the plaintiff the benefit of any excess the land may bring at another sale more fa- vorable to a better competition of bidders. Justice should not be sacrificed to policy. There is no intimation of anything unfair at the sale by the purchaser or any other person, but the plaintiff had the purpose to be present with a friend, and to buy in the property at a sum in excess of that at which the property was struck off. And he at- tempted to be present and failed without default imputable to him, and it being reasonably to be inferred from the extreme severity of the weather that others were thereby hindered from attending the sale, it is ordered that the sale reported to this term be set aside, and the release of the bonds executed by the purchaser, and the money paid in by him be returned; and that the clerk do resell the land on the terms prescribed in the original decree, opeiv- ing the biddings at the advance bid of the plaintiff, and that he report to the next term of this court. Resale ordered. See "Judicial Sales," Century Dig. § 79; Decennial and Am. Dig. Key No. Series § 41. FRONEBERGER v. LEWIS, 79 N. C. 426, 435, 436. 1878. Mortgagee's Purchasing at Foreclosure Sale. [In the course of an opinion discussing the legal and equitable status of a fiduciary who purchases the trust property at a sale made by him- self, is the following : ] Reade, J. ... At law a trustee cannot buy at his own sale, because to constitute a sale, there must be two persons, a vendor and a vendee. So at law when there are two persons, that is, when a second person is substituted to make the sale or to buy, the legal requirement is supplied and the sale is valid. And therefore it is, that a trustee designing a personal advantage substitutes or pro- cures to be substituted such second person, when, like the ostrich, having hid his own head, he thinks he cannot be seen. But equity is clear-sighted and looks at the substance, and the substitution of the second person makes not the slightest difference, although it does make the sale valid at law. There is a class of cases which have to be distinguished from the general rule as follows : "Wherever the trustee has a personal in- terest in the ti'Ust property, there, of course, he must have the right to protect it, arid if to bid for and buy it be necessa/ry to protect it, he inust be allowed to do it for that purpose. The case stated by 296 CONCERNING REAL ESTATE. [Cli. 3. Judge Boyden was an instance of this. There, the trust property, land, belonged not to the wards alone, but to the wife of the guard- ian, and, as Judge Boyden says, he had the right to bid to keep the land from being sacrificed. The same is true where a mortgagee sells land to pay his debt, and the property is likely to be insuffi- cient, and he will lose his debt unless he bid for the property. In these eases, and the like, it is usual and perhaps necessary for "the trustee and beneficiary to obtain leave of the court to bid, or else to have a confirmation with full knowledge of all the facts appear- ing." The only other exceptions are where the cestuis que trust consent or ratify with full knowledge of all the facts. In the case before us there is not a single favorable circumstance for the defendant. No necessity is shown for having a third party to make the sale. No reason why the officer of the court was not appointed. No evi- dence as to what was reported to the court, or that it was made known that the administrator had bought. The price was one- third of the value. No offer to surrender the land or to account for its value. It is suggested that the defendant ought to be al- lowed to surrender the land instead of being charged with its value. Doubtless that is usual. at the election of the cestui que trust. But there is nothing to show the condition of the land. It may have been spoiled or it may have been improved. There can be no injustice to the defendant in making him pay the simple value of the land with interest, especially as he has never offered to surrender. Indeed his motion is to hold the land, not at the value ascertained already, but at a value to be ascertained by a reference. For the proper form and substance of judgments in foreclosure suits, see Hyman v. Devereux, 63 N. C. 624; Nimrock v. Scanlln, 87 N. C. 119; Ellis V. Husseg, 66 N. C. 501; Flinn v. Smith, 79 N. C. 310; Whiting v. The Bank, 13 Peters (U. S.) at p. *15; McQueen v. Smith, 118 N. C. 569, 24 S. E. 412; Rev. § 469(7). See "Executors and Administrators," Cen- tury Dig. § 1500; Decennial and Am. Dig. Key No. Series § 365; "Mort- gages," Century Dig. § 1518; Decennial and Am. Dig. Key No. Series § 516. Sec. 19. Eemedies op the Mortgagor and his Assigns. KEMP V. MITCHELL, 36 Ind. 249, 254, 255. 1871. Bill for Redemption. Form, etc. [This was an action to foreclose a mortgage. Kemp was made a party defendant because he had originally made the mortgage in question; had sold the mortgaged property subject to the mortgage; and then had re- purchased it, the mortgage still being unpaid. Kemp filed a cross bill (which the court treats as a Bill for Redemption), and the plaintiffs, Mitchell et al., demurred thereto. Demurrer sustained. Judgment against Kemp, and he appealed. Affirmed.] Downey, J. . . We are inclined to regard the cross com- plaint as one to redeem the mortgage, and regarding it as such, the question is, is it sufficient ? What are the essentials of such a Sec. 19.] CONCERNING EEAL ESTATE. 297 complaint? As it is equitable relief which is sought, we must, in the absence of any statutory provision on the subject, look to the approved authorities on the subject of equity pleading for an an- swer to these questions. If the deed was but a mortgage, as claimed by Kemp, then he was bound to pay the money at the time stipu- lated, or, according to the doctrine of the courts of law, his right to pay off the debt and have his land back was gone. But in equity the rule was different. There he might come afterward with the money and interest, and, on paying, have a return of the pledge. If the mortgagee refused to accept it, he might file his bill to re- deem, and, praying the court to take the account, and offering to pay what might be found due, the court would take jurisdiction, ascertain the amount, and compel the mortgagee to accept it and give up his claim upon the mortgaged property. But though it was not necessary that the party filing such a bill should actually bring the money into court, in the first instance, it was necessary that he should offer to pay the amount which he acknowledged to be due, or which the court should find to be in arrear. "It is a uniform requirement in regard to bills to redeem, that the bill should contain a formal offer to pay whatever sums the plaintiff admits to be due ; and the prayer, that upon payment of whatever sums might be found due upon taking the accounts be- tween the parties, the mortgagee or other incumbrancer might be decreed to reconvey the property, is not sufficient. Such a bill was held bad upon demurrer, and leave granted to amend by inserting a formal offer to pay. It is not important that the offer to pay should name any sum which the plaintiff admits to be due, al- though in point of practice a definite sum is commonly tendered in such cases, in order to recover costs, if the sum found due falls be- low the sum tendered. But the bill must contain a formal offer to redeem, by paying whatever sum shall be found due upon taking the account." Story, Bq. PL s. 187 (a) ; Harding v. Pingey, 10 Jur. (N. S.) 872 "A bill in equity must state a case upon which, if admitted by the answer, a decree can be made ; therefore a bill to redeem from sale upon execution of a right of redemption, which contains no averment of readiness to pay and an offer to pay, is bad on de- murrer, for want of equity. " Perry v. Carr, 1:1 N. H. 371. The judgment is affirmed, with costs. As to who is entitled to redeem, see 2 L. R. A. (N. S.) 627; 3 lb. 1068; 4 lb. 1039; 27 Cyc. 1804. That there must be a tender of the money, or an offer in the bill to pay what is due, see Jones on Mort. sec. 1095. See "Mortgages," Century Dig. § 1838; Decennial and Am. Dig. Key No. Series § 616. SOWBLL V. BARRETT, 45 N. C. 50. 1852. Bill to Have a Deed Absolute Declared to he a Mortgage, and to Redeem. [Bill for redemption of property transferred to the defendant by the plaintiff by a deed absolute in form. Answer, replication and proofs. Cause transferred to the :suprfetne court for trial. Judgment against 298 CONCERNING REAL ESTATE. [Cll. o. plaintiff dismissing the bill for defects pointed out in the opinion. The property emhraced in the deed was a tract of land and a negro.] Pearson, J. Since the case of Streator v. Jones, there has been a uniform current of decisions, by which these two principles are established in reference to bills which seek to correct a deed, abso- lute on its face, into a mortgage or security for a debt : 1. It must be alleged, and of course proved, that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advan- tage ; 2. The intention must be established, not merely by proof of declarations, but by proof of facts and circumstances, dehors the deed, inconsistent with the idea of an absolute purchase. Other- wise, titles evidenced by solemn deeds would be, at all times, ex- posed to the ' ' slippery memory of witnesses. ' ' These principles are fully discussed in Kelly v. Bryan, 41 N, C. 283, and it is useless to elaborate them again. The plaintiff has failed in both particulars. He gave no satis- factory account of the fact that the deed is absolute on its face ; and he proves no facts and circumstances dehors the dead, incon- sistent Avith the idea of an absolute purchase. It is true he proves declarations of the defendant, which render it highly probable that there was some understanding between the parties, that the de- fendant would take back his money and reconvey the negro ; but this does not bring the ease within the two principles above an- nounced. . Bill dismissed. For the general legal effect of deeds absolute intended as mortgages, see 5 L. R. A. (N. S.) 387; 11 lb. 209, 825, and notes. "A deed absolute on its face will not be converted into a mortgage, unless upon allegation and proof that the clause of defeasance was omitted by reason of ignorance, mistake, fraud, or undue advantage taken of the mortgagor." Sorague v. Bond, 115 N. C. 530, 20 S. E. 709, headnote. But in Puller y. Jenkins, 130 N. C. 554, 41 S. B. 706, it is held that an absolute deed may be declared to be a mortgage when the parties, at the time of its execution, agreed that it should be so considered, without allegations of mistake or fraud. See Jones on Mort. sec. 282 et seq.; 3 Pom. Eq. Jur. sec. 1196,. See "Mortgages," Century Dig. §| 60-111; Decennial and Am. Dig. Key No. Series §§ 31-38. JOYNER V. FARMER, 78 N. C. 196. 1878. Bill to Redeem Property Purchased ty Mortgagee at His Own Sale. [The plaintiff mortgagor sued the mortgagee for the purpose of setting aside a sale of lands made by the mortgagee under a power in the mort- gage. Judgment against the defendant, and he appealed. Affirmed. The land was sold by the mortgagee June 20, 1873, and purchased by himself through an agent. Deed made to the agent who immediately con- veyed to the mortgagee. By agreement after the sale the mortgagor re- tained possession until he harvested the crops. The property brought more than was due on the mortgage, and the excess was paid to the mort- gagor less three hundred dollars deducted for rent. This action was brought January 25, 1875, soon after plaintiflE gave up the land. The de- fendant mortgagee insisted that by accepting this excess and giving up possession of the property the sale was ratified and the mortgagor estopped to attack it. The judge ruled that the whole transaction made Sec. 19.] CONCERNING KEAL ESTATE. 299 no change In the relation of the parties, but that the relation of mort- gagor and mortgagee still existed, and ordered the land to he sold and the proceeds to be applied to the balance of the debt, if any, due on the mortgage, and the residue paid to the plaintiff mortgagor.] Rodman, J. It is not doubted that a mortgage oi: land with a power of sale in the mortgagee upon default in payment, is lawful. And if the mortgagee sell under such a power, a stranger who pur- chases bona fide will acquire a good title free of the trust. Coot on Mort. 125, n. A, 130 ; Paschal v. Harris, 74 N. C. 335. It is equally clear in this state, and generally, but not universally, that if the mortgagee himself purchases at his sale, whether he does it directly or by an agent, he nevertheless holds the legal estate subject to an equity in the mortgagor to redeem, unless in some way he releases or loses that equity." Wash, on Real Prop. 448, Book 2, ch. 3, sec. 20. In Massachusetts it appears to be established that if the mort- gage contains a provision authorizing the mortgagee to purchase at his own sale, he may do so, if his proceedings are fair and hon- est. 14 Allen (Mass. ) ,'369 ; Hall v. Bliss, 118 Mass. 554. It may be that the language of the opinion in Whitehead v. Hellen, 76 N. C. 99, is somewhat too strong to be universally applicable ; for the deed from the mortgagee to his agent conveys the full legal estate to the latter, and in a eoui-t of law makes him the owner, thus divest- ing the mortgagor of his equity of redemption, which is considered even after forfeiture as an estate, although enforceable only in equity, and liable to sale under execution by the act of 1812, Bat. Rev. ch. 44, § 5, and turning the equitable estate into a mere right of action, which could not be sold under that act. But as between the mortgagor and mortgagee, the right of the former in equity after such a sale cannot be held to differ essentially from what they were before, unless they have been lost in some of the ways pres- ently to be mentioned. The sale of the mortgagee is not void, but voidable, and can be avoided only by the mortgagor or his heirs or assigns. Wash. ante. The estate of the mortgagee acquired by the sale, being voidable only, may be confirmed by any of the means by which an owner of a right of action in equity may part with it: (1) By a release under seal, as to which nothing need be said; (2) Such conduct as would make his assertion of his right fraudulent against the mortgagee, or against third persons, and which would therefore operate as an estoppel against its assertion; (3) Long acquiescence after full knowledge, and probably this method may be classed with the sec- ond, unless it has continued for so long a time that a statute of limitations operates, or there is a presumption of a release. Wash, ante ; 8 Rich. Eq. 112 ; 4 Minn. 25 ; 16 Md. 508 ; Lewin on Trusts, 651. What length of time would suffice for such a purpose, is left un- certain upon the authorities. White's L. C. in Eq. 158-168 ; Mitch- ell V. Berry, 1 Mete. (Ky.) 602; Jenkins v. Hogford, 7 Pick. 1. Perhaps it may be that the statute of three years on a parol prom- ise may furnish a proper rule. In the present case the plaintiff was present at the sale by the 300 CONCERNING REAL ESTATE. ..[CJl. 3. mortgagee and did not object. He afterwards retained possessiott of the land as the tenant of the defendant for a year ; and appar- ently after the end of the year, although the date is not given, re- ceived from the defendant the residue of the sum for which the land was sold, after deducting the rent. This action was brought on the 25th of January, 1875, soon after the expiration of his term as tenant. The sale was on the 20th of June, 1873. No case holds that a mere acquiescence for so short a time bars an action. There is nothing in the case from which it can be inferred that the con- duct of the plaintiff or his delay to sue, has induced the defendant to put himself in any worse position than he was in immediately after the sale. The defendant says that the plaintiff deteriorated the land during his occupancy of it. But it was still an ample security for the debt, and if that deterioration occurred during the tenancy, we must assume that it was guarded against in the lease, as it might have been. The rights of no third persons have inter- vened, and the lapse of time is too short to raise any presumption of a release or abandonment of the right. No fraud or ill conduct is imputed to the defendant. It is not alleged that it was known at the sale, that the purchaser was bid- ding for him, or that the price was diminished by such bidding. But the interest of a vendor and a purchaser are so antagonistic, that the same man cannot safely be allowed to fill both characters. Van Epps v. Van Epps, 9 Paige Ch. 241. No doubt there are ex- ceptional cases in which a mortgagee may sell with perfect fairness and to the advantage of the mortgagor, and buy. But a court can never know with certainty, that it has been so in any particular case, and is obliged to act upon the general rule for the prevention of unfair dealing. The defendant cannot be injured by having the value of the land ascertained by a public sale, under the order, and by an officer of a court, and an adjustment of the account between him and the plaintiff, after such sale. Judgment below affirmed and case remanded. As to what is said in the principal case, concerning the length of time that will bar the mortgagor's right to redeem under the circumstances befoTB the court, see Jones v. Pullen, 115 N. C. at p. 471, 20 S. B. 624, which substitutes ten years for three years as the statutory period. See "Mortgages," Century Dig. §§ 1083, 1101; Decennial and Am. Dig. Key No. Series §§ 362, 370. ■Sec. 20. Remedy for Breach op Contract to Purchase, Con- vey, OR Devise Land. GARRARD v. DOLLAR, 49 N. C. 175, 178-180, 67 Am. Dec. 271. 1856. Contract to Purchase Land. Remedy of Vendor, at law. Damages. [Plaintiff sued at law for damages for breach of contract by which defendant obligated himself to purchase certain lands from the plaintiff. There was a judgment by default and inquiry, and uifon the inquiry theire was a special verdict. Judgment against the defendant for six- Sec. 20.] CONCERNING REAL ESTATE. 301 pence. Plaintiff, not being satisfied with sucli a small sum, appealed. Reversed. The verdict of the jury was that the vendor, Garrard, had no title to the land when he sold it to Dollar, nor at the time Dollar tailed to pay tor it; but acquired the title during the term of court at which the inquiry was had; and if that fact ought to be considered in mitigation of dam- ages, they assessed the damages at sixpence; otherwise the damages were fixed at $2,872.50. The judge being of opinion that the facts with regard to the title should mitigate the damages, rendered judgment for sixpence and costs. The supreme court, after holding that the judgment by default cut off any defense growing out of the want of title in the plaintiff set out in the special verdict, proceed to declare the law as to the measure of damages in case a vendee wrongfully refuses to accept the land and pay the price agreed.] Battle, J. . . . On an inquiry of damages, upon a default, all the material allegations of the plaintiff's declaration are to be considered as admitted by the defendant to be true, and the only question will be, what is the mle of damages in the particular case? If the damages be, in their nature, uncertain, as in many of the forms of action they will be, then the amount will have to be ascertained by the proofs which each party may be able to produce. If they are certain, or, by computation, capable of being reduced to a certainty, then there will be little or no room left for the proof. In the case before us, the defendant covenanted to pay a certain price per acre for a tract of land, the number of acres of which was to be ascertained by a survey. It was so ascertained, and the sum agreed on to be paid was thus reduced to a certainty. That sum the plaintiff is entitled to recover as damages, unless it be the rule that a vendor of land, after doing everything he can towards the fulfilment of his part of the contract, can recover from the default- ing purchaser nominal damages only. This is an important prac- tical question, and upon it the decisions of the courts in different countries do not seem to be uniform. In England, it is said that when the vendee refuses to perform, the measure of damages is held to be the difference between the price fixed in the contract and the value at the time fixed on for the delivery of the deed ; so that if the property does not fall in value, the vendor can get nothing but nominal damages. Thus, in the case of Laird v. Pim, 7 M. & W. 474, where an eminent judge, Baron Rolfe (who is now the Lord Chancellor Cranworth), had, at the trial, restricted the vendor to nominal damages, the court of Exchequer, on the argu- ment of a rule to show cause ^vhj the damages should not be in- creased to the amoiuit of the purchase-money, said: "The question is, how much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase-money in consequence, of the non-performance of the contract? It is clear he cannot have the land and its value too." There are, indeed, some prior English cases which seem to have held a contrary doctrine. Goodisson v. Nunn, 4 T. R. 761 ; Glazebrook v. Woodrow, 8 T. R. 366. In Ver rnont, the rule as laid down by the court of Exchequer was recog- nized. Sawyers v. Mclntire, 18 Vt. 27. A different rule prevails in Maine (Aland v. Plummer, 4 Green. 258), and in New York. (Shannon v. Comstock, 21 Wend. 457; "Willimas v. Field, stated 302 CONCERNING REAL ESTATE. [Cll. 3. shortly in a note to page 192 of Sedgwick on Damages) . Mr. Sedg- wick says, that ' ' the question is evidently not free from perplexity. On the one hand, it is said that the vendor, by making a tender, has performed his contract so far as it lies in his power ; that his right is complete to the performance of the contract by the vendee, and that this performance is the payment of the purchase-money. But on the other side, it is replied with great force, that the recovery cannot pass the fee in the land ; that the legal seizin still remains as at first ; that the vendor has not parted with his property ; that, if the land has not fallen in price, he has lost nothing ; that the com- mon law gives damages for none but actual loss ; and it is insisted that the true measure of damages in such a case is the difference be- tween the stipulated price and the actual value at the time of the breach, or, perhaps, at the time of the trial." Sedg. on Dam. 191, 192. The author, in a note to the page last referred to, expresses his preference for the latter rule, though he admits that it is differ- ent vnth respect to the sale of personal chattels. See page 281. The counsel ha^'e not referred us to any case in our court where the rule has been settled. In the absence of an express adjudica- tion, we feel at liberty to adopt the rule that gives to the vendor the contract price with interest thereon, when he shows he has done all in his power to complete the contract on his part, by making and tendering a deed to the vendee. If a court of law cannot take into consideration the fact, that upon payment of the purchase-money the court of equity will compel the execution of a deed by the vendor, it can enforce its own salutary principles, that no person shall take advantage of his own wrong, and will thus prevent an unscrupulous vendee from mocking his innocent vendor by refusing to perform his solemn engagement, and submitting to a judgment for a penny damages. The judgment given in the court below, in favor of the plaintiff, for sixpence damages, is reversed, and the judgment will be en- tered in this court in his favor, upon the special verdict, for $2,872.50, and also for costs. Judgment reversed. See "Vendor and Purchaser," Century Dig. §§ 953-956; Decennial and Am. Dig. Key No. Series § 330. GRISWOLD V. SABIN, 51 N. H. 167, 12 Am. Rep. 76. 1871. Contract to Purchase Land. Remedy of Vendor, at law. Damages. [Griswold contracted to sell land to Sabin, and Sabin contracted to purchase the land and pay $6,000 for it. Griswold tendered a deed In due form as stipulated tor in the contract, but Sabin refused to accept the deed and pay the price. Thereupon Griswold sold the land for $5,500 and sued Sabin for damages for breach of the contract. The judge cfifirged that the measure of damages was the difference between the contract price of $6,000 and the value of the land at the time Sabin broke the contract by refusing to accept the deed and pay the price. Verdict and judgment against the defendant for $100, and he appealed. Affirmed.] Sec. 20.] CONCEENING BEAL ESTATE. 303 Sargent, J. ... As to the rule of damages in this case. . . . The rule in England is understood to be well settled in cases of contract for the sale of real estate, and is this: "Where the vendee refuses to perform, the measure of damages is held to be the difference between the price fixed in the contract, and the value at the time fixed on for the delivery of the deeds." Laird v. Pirn, 7 M. & W. 474, and cases cited. It has been said to follow from this rule that if the property does not fall in value, the vendor can recover nothing but nominal damages. But that would be assuming that the price agreed on by the parties was the true value, which would ordinarily be the case where the trade was madb in good faith. The same was settled to be the law of Massachusetts, after sev- eral rulings the other way, in Old Colony Railroad v. Evans, 6 Gray, 25, where the court say: "Upon more full consideration of the measure of damages, in an action at law where the defendant has refused to receive the deed tendered him, the court are of opin- ion that the proper rule of damages in such a case is the difference between the price agreed to be paid for the land, and the salable value of the land at the time the contract was broken." In Maine a different rule was established, in Alan v. Plummer, 4 Greenl. 258, and in numerous cases in New York, cited in Rich- ards V. Edick, 17 Barb. 260-265, where it is held that in this class of eases "the vendor is entitled to recover the full purchase price." But in the opinion, Gridley, J., admits that this rule is not equi- table, and that, if it were a new question in that state, "there would be great reasons for adopting the principle which is now held to be the law of the English courts." But he felt bound by the prece- dents in that state, on the ground that the rule had there become so well established that it ought not to be disturbed ; though the rule is there held to be different in regard to contracts for the sale of personal property. In this state the rule is well settled in regard to contracts for the sale of personal property. Stevens v. Lyford, 7 N. H. 360 ; Wood- bury V. Jones, 44 Id. 209 ; Gordon v. Norris, 49 Id. 376. and cases cited, 385, 386 ; Haines v. Tucker, 50 Id. 307-317. And we think the same rule should and must be applied in cases of contracts for the sale of real estate, where the vendee refuses to receive the deed and pay the price according to the contract. In this case the defendant objects that the instructions he re- quested were not given, viz., that if the defendant had broken the covenant, and the plaintiff afterward sold and conveyed the prop- erty without defendant's consent, the plaintiff is entitled to re- cover only nominal damages. The defendant having broken his contract, the plaintiff might have brought his bill in chancery to compel a specific performance, or he might bring his suit at law for damages on account of its breach. Under the instructions given, it made no difference whether the plaintiff had sold the land or not ; its real value at the time when the defendant broke his con- tract was the only question. If the plaintiff had sold the land at public auction, and notified the defendant, he might have been es- 3U4 CONCERNING HEAL ESTATE. [Ch. 3. topped to say that the price obtained was not its true value. But as the case stands, the plaintiff having sold the land at private sale, he cannot claim that the price obtained was the true value : but as we have seen, upon the instructions given, which we hold to be correct, it became entirely immaterial whether the plaintiff had sold the land or not, or for what price. And least of all could he be required to obtain the defendant's consent to the sale, which he might never have been able to do. Upon this general subject of the rule of damages in this class of cases, limited to contracts for the purchase of real estate, see Sedgwick on Dam. 203, and cases ; Par- sons on Cont. and cases cited. Judgment on the verdict. The principal case is sustained by Hallett v. Taylor, 177 Mass. 6, 58 N. E. 154; Warvelle on Vendors, sec. 937; 2 Sutherland on Damages, ss. 568-571; 29 Am. & Eng. Enc. Law, 719; Sedgwick on Damages (Stu- dents' Ed.) 319. See "Vendor and Purchaser," Century Dig. §§ 953-956; Decennial and Am. Dig. Key No. Series § 330. NICHOLS V. FREEMAN, 33 N. C. 99, 103, 104. 1850. Contract to Sell Land. Remedy of Purchaser, at Law. Damages. [Action for damages for refusal or failure of defendant to convey cer- tain land to plaintiff pursuant to a contract between plaintiff and Sutton, the defendant being. surety for Sutton. Judgment of nonsuit against the plaintiff, and he appealed. Reversed. Sutton and Freeman made their bond to plaintiff in the penal sum of $10,000, with a condition to be void if Sutton should convey the locus in quo to the plaintiff. Sutton did not convey the land, and this action is brought for the penalty of the bond — ^the judgment to be discharged upon the payment of the damages claimed. It was agreed that, if the judge considered the proper measure of damages to be the difference between the value of the property at the time it became impossible for Sutton to convey it to the plaintiff (because of a sale thereof by the sheriff under an execution against Sutton) and the balance of the pur- chase money due by the plaintiff, judgment should be entered fixing the damages at $207.80; but if the judge considered the measure of damages to be the amount which the plaintiff had paid to Sutton on the land, less the rent while the plaintiff was in possession, the judgment should fix the damages at $8,060,25. Plaintiff contracted to pay $8,000 for the property. He had paid $6,552.78 when the sheriff sold the land. The value of the property at the time the sheriff sold it was only $2,500. The judge being of opinion that the action could not be maintained be- cause of matters not germane to the subject under investigation, non- suited the plaintiff. Only that part of the opinion which discusses the measure of damages for breach of contract to convey the land, is here inserted.] Pearson. J. . The second question is, as to the measure of damages. We cannot yield our assent to the position assumed by the plaintiff, that he has a right in this action against one of the obligees for a breach of the bond for title, to recover as dam- ages the amount of the purchase money which had been paid, in the same way as if the plaintiff had repudiated the contract and sued the vendor for money "had and received to his use." In this action the plaintiff does not repudiate the contract, but Sec. 20.] CONCEKNING REAL ESTATE. 305 seeks to recover compensation in damages for its nonperformance ; and the question is, what damage has been suffered? What sum will put him in as good a condition as if the contract had been per- formed 1 In that event, he would have got a property which is worth $2,500, but he would have been forced to pay the balance of the purchase money and interest. lie has not paid this latter amount, and his damage is the difference between that sum and the value of the property ; which, by the case agreed, is $207.80, with interest from the 8th of May, 1843. This gives the plaintiff his redress at law, by compensation in damages, which he has elected to pursue as his remedy. He had the right to file a bill in equity for a specific performance, and the decree would have been for a conveyance of the property, upon his paying the balance of the purchase money with interest. He would not have been entitled fo a decree for the amount of the purchase money which he had paid, and there is no principle upon which he can recover it, in this action upon the bond. The only difference between his remedy at law and in equity upon the contract is, that in the one court he gets the property by paying for it ; in the other, he gets compensation in damages, which is the difference between the vahie of the property and the amount of the purchase money remaining unpaid. . Judgment re- versed. See "Vendor and Purchaser," Century Dig. §§ 1047-1058; Decennial and Am. Dig. Key No. Series § 351. HOPKINS V. LEE, 6 Wheaton (U. S.), 109, 117. 1821. Contract to Sell Land. Remedy of Purchaser, at Law. Damages. [Lee brought this action of covenant against Hopkins, to recover dam- ages for not conveying certain tracts of land which he had contracted to convey to Lee. Verdict and judgment against Hopkins, who carried the case to the supreme court by writ of error. Affirmed. Hopkins failed to convey the lands according to his contract and in- sisted that the measure of damages was the value of the lands as fixed by the price which Lee had contracted to pay; but the judge directed the jury to take the value of the lands at the time they should have been con- veyed, by the terms of the contract, as the measure of damages. Only that portion of the opinion which discusses the measure of damages Is here inserted.] Livingston, J. ... In the assessment of damages, the coun- sel for the plaintiff in error prayed the court to instruct the jury that they should take the price of the land, as agreed upon by the parties in the articles of agreement upon which the suit was brought, for their government. But the court refused to give this instruction, and directed the jury to take the price [value] of the lands, at the time they ought to have been conveyed, as the meas- ure of damages. To this instruction the plaintiff in error excepted. The rule is settled in this court, that in an action by the vendee for a breach of contract, on the part of the vendor, for not delivering Remedies — 20. 306. CONCERNING REAL ESTATE. [CIl. 3. the article, the measure of damages is its price [value] at the time of the breach. The price being settled by the contract, which is generally the case, makes no difference, nor ought it to make any ; otherwise the vendor, if the article have risen in value, would al- ways have it in his power to discharge himself from his contract, and put the enhanced value in his own pocket. Nor can it make any difference in principle whether the contract be for the sale of real or personal property, if the lands, as is the case here, have not been improved or built on. In both cases the vendee is entitled to have the thing agreed for at the contract price, and to sell it him- self at its increased value. If it be withheld, the vendor ought to make good to him the difference. This is not an action for eviction, nor is the court now prescribing the proper rule of damages in such a case. Judgment affirmed. That there is no difflerence in the measure of damages whether the subject matter of the sale be realty or personalty, according to the pre- vailing rule in the United States, see 3 Sedg. on Dam. (8th ed.) 197; Ibid. Students' Ed. 321; 2 Sutherland on Dam. sec. 578 et seq.; 29 Am. & Eng. Enc. Law, 619, 724. See "Vendor and Purchaser," Century Dig. §§ 1047-1058; Decennial and Am. Dig. Key No. Series § 351. LOVE V. CAMP, 41 N. C. 209. 1849. Contract to Convey Land. Remedy of Purchaser, in Equity. Specific Performance. [Bill for specific performance of a contract to convey land. Answer, replication, and proofs. Cause transferred to supreme court for trial. Decree against defendant. Camp contracted to convey the locus in quo to the plaintiff, and was paid the price agreed on. The land increased in value and Camp refused to make the conveyance, and set up as an excuse for not doing so and as a defense against a decree that he specifically perform his contract, the fact that he had only a share in the land and was unable to purciase the other shares "after reasonable exertion" so to do.] Pearson, J. We think the plaintiffs are entitled to a specific performance of the contract. The defandant says he owns one sixth part in fee, and a life estate in another sixth part, and this he is willing to convey ; but he says he does not own the other shares, and, "after reasonable exertion, since he made the contract, has been unable to procure the title of the other tenants in common, who are imwilling to sell," and he is therefore unable to comply with his contract. The question is, under these circumstances, will a court of equity decree a specific performance, or decline to inter- fere and leave the plaintiffs to their remedy at law. One, who for a valuable consideration enters into an agreement, is bound in con- science to perform it. A court of law can only give damages for a breach — this remedy is in many eases inadequate. A court of equity will do full justice, and, addressing itself to the conscience of the party, will require a specific performance of the agreement. This jurisdiction forms one of the great heads of equity, and in the Sec. 20.] CONCERNING REAL ESTATE. 307 opinion of Lord Hardwiclie, "the most useful one." Penn v. Lord Baltimore, 1 Ves. 446. Nothing should prevent the exercise of this most useful and well established jurisdiction, but the strongest and most controlling considerations. If a husband agrees to procure his wife to join with him in a conveyance of her land, and the wife re- fuses to do so, it seems by the modern cases, that a court of equity will not decree a specific performance. 1 Madd. ch. 311 ; Sugden on Vendors, 151. There are cases in which the husband has been confined to the Fleet, until his wife agreed to join him in the con- veyance; and in one case, the husband, after being confined for many years, was discharged, it appearing that his wife could not be induced to make the conveyance; 5 Ves. 548, and 8 Ves. 848. These cases show, with what reluctance courts of equity stand by and permit a party to deprive another of the benefit of his con- tract. But it has recently been held, that the court will not inter- fere, upon two considerations. The vendee knew, at the time of the contract, that the husband did not own the land, and might not be able to perform his agreement; he, therefore, has no right to com- plain, if he is left to his remedy at law, upon its appearing that, after a bona fide effort, the husband is not able to procure the wife's consent. And, in the second place, because, if the husband be decreed to perform, he will compel the wife, who is under his control, to convey; and the wife ought not to be exposed to this compulsion on the part of her husband. It may be, but upon this we give no opinion, that where the vendee knows that the vendor has not the title, and takes a bond or covenant that a third person will be procured to make a conveyance, equity will not decree a specific performance, if it appears that the vendor has made proper exertions to procure the conveyance from such third person; be- cause the first consideration above referred to, applies with full force. As if a father, seized as tenant by the curtesy sell in fee simple, and covenants that he will procure conveyances from his children, when they come of age. If they refuse after proper ef- forts on the part of the father, equity may decline to decree a spe- cific performance and leave the vendee to his remedy at law, this being a state of things which he might have expected and as to which he took the chances. This result would seem to follow from Dhe reason of the thing, but in respect to that we give no opinion. No case makes such an exception to the general jurisdiction to de- cree specific performance, and it is only adverted to for the pur- pose of illustrating the next proposition, upon which this case turns. Oliver v. Dix, 21 N. C. 158. If the vendee does not know that the vendor has not the title, there is then no reason why he should not be decreed to perform his agreement ; and if he is put to great inconvenience and expense to enable him to obey the decree, it will be the consequence of his own act, and he will not be al- lowed to offer such an excuse for not doing justice. When a ven- dee seeks to rescind a contract, because of a defect in the title in the vendor, the latter is allowed time to complete his title, until the hearing. Clanton v. Burgess, 17 N. C. 13. As a defect of title will not excuse a vendee, provided it can be made good ; upon ground of 308 CONCERNING RE.VL ESTATE. [CJl. 3. mutuality it should not excuse a vendor. As the vendee cannot dis- charge himself, should the land depreciate in value, so the vendor should not be allowed to discharge himself, if the value is enhanced. In this case it does not appear that the plaintiff, Love, knew that the de*°ndant did not have title. The bill avers that the defendant did have title, or did have full authority from his eotenants to sell. The defendant denies that he had title to the whole, and insists that the plaintiff had notice of his want of title ; but he offers no proof of fact and his covenant is to convey or cause to be conveyed the whole in fee, and he admits that he has received the price of the whole. As to the averment that he had authority from his eoten- ants to sell, the defendant is entirely silent, leaving the inference that he either had such authority, or was guilty of a fraud in re- ceiving the price of the whole. But if it be conceded, for the sake of argument, that this court will not make a decree, requiring a party to do that which it is clearly out of his power to do, as it may amount to perpetual imprisonment, there is, in this case, no suffi- cient allegation and no proof whatever, to raise the question. The defendant avers generally, that after reasonable exertion (and what amounts to it, he chooses to decide for himself), he is unable to procure his eotenants to convey. A conscientious man would not consider this a sufficient apology for the breach of an agreement creating no legal obligation- [a fortiori it is no excuse] when of- fered as a reason why a court of justice should not compel the per- formance of a legal obligation. It is mere mockery. The defend- ant should have set out what he had done — what price he had of- fered to pny — so that the court might .judge whether his exertions had been "reasonable," especially as the averment in the bill, that the value of the land had greatly enhanced since the contract, by the location of the town of Shelby on adjoining land, creates against him the strongest suspicion, and impeaches his motives by the suggestion, that if he has title. _he refuses to perform his agree- ment for the sake of gain — or if the title is outstanding, he is un- willing to offer his eotenants what is now a fair price. A man of proper feelings would be unwilling to avail himself of the gain, and would be willing to submit to much loss rather than violate his sol- emn agreement. A court of equity acts upon the conscience, and enforces a specific performance, and will require this unconscion- able gain to be given up, or this loss to be incurred, if it be neces- sary to enable him to do that which he has undertaken to do, and for which he has received the full consideration. There must be a decree for a conveyance to the plaintiff, Ilomesby, who is the as- signee of the other plaintiff. Love, and the defendant must pay the costs. For specific performance when the land lies in another state or when the defendant is a nonresident, see 23 L. R. A. (N. S.) 924, 1135, and notes. The ruling in the principal case as to coercing a defendant to acquire a title in order to perform his contract, has been greatly modified by later decisions — see Swepson v. Johnston, 84 N. C. 449. That specific perform- ance of a contract to buy or sell real estate will be decreed as a matter of course in plain cases, but only in the discretion of the court when Sec. 20.] CONCERNING REAL ESTATE. 309 hardship would result from such a decree, see Rudisill v. Whltener, 146 N. C. 403, 59 S. E. 995, 15 L. R. A. (N. S,.) 81, and note; Boles v. Caudle, 133 N. C. 528, 45 S. E. 835. In headnote 2 of Weed v. Terry, 2 Doug. (Mich.) 344, it is said: "Equity will not compel the specific perform- ance, by a husband, of his agreement to procure his wife to join him in a conveyance of real estate." In Fortune v. Watkins, 94 N. C. at hot. p. 315 is this: "A recent author, referring to a demand of the vendee for specific performance of a contract to convey land, uses this language: 'If the vendee knows that the vendor is a married man, he knows that his wife is entitled to dower and that she cannot be compelled to release her dower right. Entering into the contract with such knowledge, he is not entitled, within the doctrine well established, to ask anything more than the husband can give. It is the vendee's knowledge, and not any notion of making a new contract for the parties, which prevents the pur- chaser from obtaining compensation [for a defect in title caused by the wife's refusal to release her dower right]. On the other hand, if the vendee entered into the contract in ignorance that the vendor was mar- ried, and under the supposition that the vendor could convey an unin- cumbered title, then he ought to have a specific performance with an abatement from the price.' Pomeroy on Spec. Pert, s, 461." In Rodman V. Robinson, 134 N. C. at top p. 516, 47 S. E. 23, it is said: "The decree should have directed the defendant to make reasonable effort to get his wife to sign the deed. Swepson v. Johnston, 84 N. C. 449; Welborn v. Sechrist, 88 N. C. at p. 292." See further on this subject, Ames' Cases on Equity Jurisdiction, Parts I-VI, p. 65, note. For full discussion of the remedy by specific perform- ance, see Seymour v. Delancy, 3 Cowen (N. Y.), 439, 8 N. Y. Com. Law Rep. (Lawyers' Ed.) 183, and note. See 19 L. R. A. (N. S.) 178, and note (essentials to complaint); 6 lb. 585-597, and elaborate note (spe- cific performance of contract to give a mortgage on realty or chattels); 12 lb. 232, and note (contract to provide for intended spouse); 2 lb. 210, and note (effect of agreement for stipulated damages upon right to spe- cific performance). See "Specific Performance," Century Dig. § 31; De- cennial and Am. Dig. Key No. Series, § 13. JOHNSTON V, GLANCY, 4 Blackford, 94, 98, 99. 1835. Oral Contract to Convey. Remedy in Equity. Part Performance. Better- ments put on hy Vendee. Price Paid 6y Vendee. [Bill to compel defendants to convey a lot of land, filed by Johnston et al. against Glancy. Decree against plaintiff dismissing the bill, and plaintiff appealed. Reversed. Johnston was in possession of the locus in quo as tenant of one who was seized in fee. This owner orally sold the land to Johnston, while he was such tenant, for forty or forty-five dollars paid in work. Johnston put betterments on the lot, after his purchase, worth between twenty-five and eighty dollars. The owner conveyed the lot to the defendants, one of whom was his brother, who had notice of Johnston's claim to it. The de- fendants rested their defense on the statute of frauds. The plaintiff re- lied upon the doctrine of "part performance" to defeat the plea of the statute of frauds, and as ground for his prayer that the defendants be decreed to convey to him. "The only question of any weight in the case is whether, under all the facts presented by the record, a specific execu- tion of this parol contract between the owner in fee and the complainant, can be enforced against the plea of the statute of frauds insisted on by the defendants?"] Stevens, J. . . . Courts of equity have determined, and it seems now to be the settled rule of decision, that parol agreements may be enforced if the agreement has been in part performed, pro- 310 CONCERNING REAL ESTATE. [Ch. 3. vided such part performance be admitted by the party charged, or be satisfactorily proven. What acts amount to such part perform- ance as will take a parol contract out of the statute, is not entirely clear of doubt. It was for a while held, that the payment of part or all of the purchase-money was such part performance ; but that doctrine is now entirely rejected. Payment in whole or in part is a strong auxiliary fact in establishing part performance, but it is not of itself sufficient. The ground upon which relief is granted in these cases is fraud; and the great leading principle by which courts are governed, is, that there must be some act of performance done, that is palpable and evident to the senses of all, — an act that can be relied on as certain, about which there can be no misunder- standing, and which does not rest solely in the recollection, under- standing, or belief of witnesses, such as absolute and visible posses- sion of the premises, the actual building of houses, or the making of other lasting improvements. But even these acts of part perform- ance must be done with a direct view of the agreement being per- formed, and be such acts as could be done with no other view, or the agreement will not be taken out of the statute. If the purchaser was not previously in possession of the premises, and after the parol purchase he enters upon the estate with the as- sent of the vendor, such possession is always held as part perform- ance, and takes the case out of the statute, and much more so, if after he enters he makes valuable and lasting improvements. But the taking of such possession without the knowledge, consent, or will of the vendor, will not do. Butcher v. Stapely, 1 Vernon, 363 ; Lacon v. Mertins, 3 Atk. 1 ; Wills v. Stradling, 3 Ves. Jun. 378; Bowers v. Cator, -1 Ves. Jun. 91 ; Gregory v. Mighell, 18 Ves. Jun. 328 ; Kine v. Balfe, 2 Ball & Beat. 343 ; Wilber v. Paine, 1 Ohio, 251 ; Wetmore v. White, 2 Caines' Gas. 87 ; G-ivens v. Calder, 2 Des. 171, 190 ; Sugden on Vend. 77-80 ; Tibbs v. Barker. 1 Blaekf. 58; Morphett v. Jones, 1 Swanst. 181; Buckmaster v. Harrop, 13 Ves. Jun. 474. But possession by a tenant, who was in possession of the premises as a tenant at the time of the purchase, and who re- mains in possession, is not considered a part performance ; for a tenant, of course, may continue in possession until he has notice to quit; and therefore the mere act of his continuing in possession amounts to nothing, and will not take the case out of the statute. Wills V. Stradling, 3 Ves. Jun. 378 ; Savage v. Carroll, 1 Ball & Beat. 265; Anthonv v. Leftwich, 3 Rand. 238; 2 Hovend. on Fr. 3 ; Sugd. on Vend. 80. .In this ca.se, the complainant, at and long before the time of making the purchase, was in possession of the lot as tenant to the vendor; therefore, his continuance in possession cannot be con- sidered as a part performance of the contract. There is some fluc- tuation in the decisions on this subject, and some contradiction in the books, as to how far courts of equity may go in taking parol contracts out of the statute ; and some cases have gone further than the principles stated above would warrant. We, however, are not disposed to carry such cases beyond the clear medium of the chain of decisions, Avhich may be safely relied on : at that point we stop. Sec. 20.] CONCERNING REAL, ESTATE. 311 In the ease now before us, we are satisfied that a specific execution of the contract should not be decreed ; yet we think that the circuit court did wrong in dismissing complainant 's bill : he is entitled to relief, and justice requires us to grant it to him without further ex- pense or delay. "When the specific execution of a parol contract cannot be decreed, by reason of the vendor's pleading the statute of frauds in bar of such decree, it is the duty of the court to decree compensation to the complainant, to the amount of the purchase- money by him paid and interest thereon ; and also for all beneficial and lasting improvements, which he may have made on the prem- ises. 2 Hovend. on Pr. 4 ; Sugd. on Vend. 78, and n. ; Anthony v. Leftwich, supra ; Parkhurst v. Cortlandt, 1 Johns. Ch. 273 ; King v. Bardeau, 6 Id. 38 ; Kelly v. Bradford, 3 Bibb. 317 ; Phillips v. Thompson, 1 Johns. Ch. 131 ; Forster v. Hale, 3 Ves. 713 ; Green- away V. Adams, 12 Ves. 395. In this case, it is certain that "the plaintiff has sustained an injury by the acts of the defendants, and his claims are sufficient to authorize the interference of the court in securing adequate compensation. Per Curiam. The decree of the circuit court is reversed with costs; and it is ordered, etc., that the complainant recover of Jo- seph Glancy, one of the defendants, the sum of ninety dollars, etc. ; and that the complainant retain possession of the premises till the said sum of ninety dollars and the costs be paid. etc. For a full review of the doctrine of Part Performance, see elaborate note at pp. 790-817 of 3 L. R. A. (N. S.); 3 lb. 852; and Ames' Cases on Equity Jurisdiction, Parts I-VI, pp. 279-281. This doctrine is repudi- ated in North Carolina. Barnes v. Teague, 54 N. C. 277; Mcintosh on Cont. 134. See "Frauds, Statute of," Century Dig. §§ 301-326; Decennial and Am. Dig. Key No. Series § 137; "Specific Performance," Century Dig. §§ 120-139, 417; Decennial and Am. Dig, Key No. Series §§ 40-47, 128. ALBEA V. GRIFFIN, 22 N. C. 9. 1838. Oral Contract to Convey. Remedy of Purchaser. Betterments. Pur- chase Money. [Bill for specific performance. Statute of frauds pleaded. Decree in supreme court for certain relief against defendant, but specific perform- ance is refused. The defendant's ancestor contracted orally to convey the locus in quo to the plaintiff; collected part of the price, and put plaintiff in posses- sion. The plaintiff built a house on the land. Defendants, to whom the land descended, refused to carry out the oral contract of their ancestor.] Gaston, J. It is objected on the part of the defendants, that by our act of 1819 all parol contracts to convey land are void, and that no part performance can, in this state, take a parol contract out of the operation of that statute. We admit his objection to be well founded, and we hold, as a consequence from it, that the contract being void, not only its specific performance cannot be enforced, but that no action will lie in law or equity for damages because of non -performance. But we are nevertheless of the opinion that the 312 CONCERNING REAL ESTATE. [CJl. 3. plaintiff has an equity which entitles him to relief, and that parol evidence is admissible for the purpose of showing that equity. The plaintiff's labor and money have been expended on improving property which the ancestor of the defendants encouraged him to expect should become his own, and, by the act of God or by the caprice of the defendants, this expectation has been frustrated. The consequence is a loss to him and a gain to them. It is against conscience that they should be enriched by gains thus acquired to his injury. Baker v. Carson, 21 N. C. 381. If they repudiate the contract, which they have a right to do, they must not take the improved property from the plaintiff without compensation for the additional value which these improvements have conferred upon the property. The court therefore directs that it be referred to the clerk of this court, to inquire and report what is the additional value con- ferred on the land in question by the improvements of the plain- tiff, and that he state an account between the parties, charging the plaintiff with a fair rent since the death of Andrew GrifiSn, and crediting him with what has been advanced towards payment for said land and with the amount of the additional value so conferred upon it. "It was also contended for the defendant that the right to have pay for improvements only exists while the bargainee is in possession, and Albea V. Griffin and Pass v. Brooks, 125 N. C. 129, 34 S. B. 228, were cited as authority for this position. But neither of these cases, nor any other case that has been called to our attention, supports this contention. In these cases and other like cases, the bargainee being in possession, the court said that such bargainee should not be turned out until the bar- gainor paid for the improvements. This was only a means resorted to by the court to enforce the bargainee's recovery, and not as the ground of plaintiff's equity, which was made distinctly to rest upon the fraud of the bargainor; and it would be just as fraudulent and unconscionable for the bargainor to take profit by means of such fraud, if the bargainee was out of possession, as if he was still in possession. It is the fraud that gives the right of action, and not the possession. But the cases of Tucker V. Markland, 101 N- C. 422, 8 S. B. 169; Pitt v. Moore, 99 N. C. 85, 5 S. B. 389; Thomas v. Kyles, 54 N. C. 302, and other cases, seem to settle the contention against the defendant. It is true that it is said in Pass V. Brooks that the contract is admitted, and, defendants being in posses- sion, the case of Albea v. Griffin was followed as to the judgment; and the statement that the contract was admitted is only a statement of the facts of the case. There is nothing in the case of Pass v. Brooks that conflicts with what is said in this opinion. The doctrines announced in this case, or many of them, are held in the recent case of North v. Bunn, 122 N. C. 766, 29 S. B. 776, in which case it is held that the bargainee was entitled to an account, and that if anything should be found in her favor, it should be a, lien on the land." Luton v. Badham, 127 N. C. 96, 103, 37 S. E. 143. See further on the subject of the principal case, Wilkle v. Womble, 90 N. C. 254; Ford v. Stroud, 150 N. C. 362, 64 S. B. 1; Mc- intosh on Cont. 111-114, 128-135. See Doty v. Doty, 80 S. W. 803, 2 L. R. A. (N. S.) 713, and note. See "Frauds, Statute of," Century Dig. § 333; Decennial and Am. Dig. Key No. Series § 138. ib'eC. 20.] CONCERNING REAL ESTATE. 313 WILSON V. BRUMPIBLD, 8 Blackford, 146. 1846. Contract to Convey. Specific Performance with Compensation for Defects. Per Curiam. A purchaser of real estate cannot be compelled to take only a part of the land for which he has contracted. If he cannot get the whole, he has a right to rescind the contract; but he has also a right, generally, to insist that the vendor shall per- form the contract so far as he is able, and make compensation in damages for the breach of that part of it which he cannot per- form. 2 Story's Eq. § 779 ; Paton v. Eogers, 1 Ves. & B. 351 ; Todd V. Gee, 17 Ves. 273 ; Waters v. Travis, 9 Johns. 430 ; 1 Sugd. Vend. 319. See "Vendor and Purchaser," Century Dig. §§ 201, 329; Decennial and Am. Dig. Key No. Series §§ 113, 165. SHAW V. VINCENT, 64 N. C. 690, 693, 694. 1870. Right to Rescind and Recover in Assumpsit. Compensation for Defects. [Assumpsit for money had and received. Judgment against defendant for one hundred dollars, but plaintiff being dissatisfied with the amount of the verdict, appealed. The action was commenced before the Code practice was adopted and was an action of assumpsit. Vincent contracted to sell certain lands to Shaw. Shaw paid part of the price, but, upon the ground that Vincent had no title to part of the locus In quo, he notified Vincent that he abandoned the contract and de- manded repayment of the two hundred dollars paid thereon. He then brought this action for that sum and for other relief. The question pre- sented is: Did Shaw have a right to rescind the contract and recover what he had paid on it, simply because the title to part of the land was defective.] Rodman, J. . . The plaintiff rests his ease principally on the first count which is founded on the idea that as soon as he dis- covered that the defendants were unable to make him a title, he had a right to rescind the contract, and recover the money he had paid under a mistake. . . There is also another objection [to plaintiff's claim of a right to rescind the contract]. In Franklin v. Miller. 4 A. & E. 599 (31 B. C. L.), Littledale, J., said: "It is a clearly recognized principle that if there is only a partial failure of performance by one party to a contract for which there may be a compensation in damages, the contract is not put an end to. ' ' In this case the defendants did own an undivided part of the lands contracted to be sold ; and the inability to perform is only partial. The doctrine of a court of equity is, that where the vendor can convey only an insignificant and immaterial part of what is bargained for, it will not compel a vendee to take that, even at a corresponding reduction of the price ; but if he can substantially perform his contract, and the part as to which he cannot perform is of such a character as to admit of compensation being made to the vendee for the failure, there the court will enforce the specific performance of the contract so mod- 314 CONCliKNING REAL ESTATE. [C7t. 3. ifled. But this is an equity which cannot be applied in a court of law. . . Venire de novo. For a full discussion ot the doctrine announced in the principal case see Sutton v. Davis, 143 N. C. 474, 55 S. E. 844. See "Specific Perform- ance," Century Dig. § 250; Decennial and Am. Dig. Key No. Series § 94; "Vendor and Purchaser," Century Dig. §§ 199-201, 965-972; Decennial and Am. Dig. Key No. Series §§ 112, 113, 334. THOMPSON V. DEANS, 59 N. C. 22. 1860. Specific Performance of Award of Arbitrators. [Bill in equity to enforce specific performance of the award of arbitra- tors relative to a controversy affecting the title to real estate. Cause heard in the supreme court upon bill, answer, and proofs. Specific per- formance was decreed. Plaintiff and defendant owned adjoining lands. A dispute arose as to the dividing line, which was submitted to arbitrators by a written sub- mission, and the parties gave bond to each other to abide the award. The award was duly made. Plaintiff offered to make a deed for such part of the land in his possession as the award gave to the defendant, and de- manded that the defendant do the like. Upon defendant's refusal so to do the plaintiff brings this bill.] Manly, J. The bill is to enforce an award by compelling a spe- cific execution. The submission appears to be by agreement in pais, and by reference to it, it is found the arbitrators are author- ized to make lines and settle the dispute then existing between the parties in regard to their dividing lines ; and they bind themselves to abide by such lines as shall be made and laid down by such ref- erees, and to allow each other peaceably to enjoy the same as al- lotted. The referees laid down a line of division, and the parties thereupon ad.iusted their respective possessions in conformity with the same. After two or three years acquiescence by all concerned, the defendant, Deans, took possession again of a parcel of land which he had abandoned under the award, and this bill is brought to compel him to abide by the lines established, and to allow each peaceably to enjoy the part allotted to him. We do not perceive why this object may not be accomplished by the bill. By the submission, the parties contracted to do what the arbitrators might direct. "When the latter, therefore, made their decision, the submission and award, together, amounted to an agreement; and as this agreement is plainly executory in its na- ture, it is, in substance, the case of an executory agreement under a penalty. The enforcement of such an agreement specifically is n familiar subject of equity jurisdiction. In Russell on Arbitrators. 525, it is said, a bill will lie to enforce a specific performance of an award whenever the matter directed by it is such that it would be enforced by the court as an agreement or contra.ct — especially when the award be to do anything in respect to lands. This is confirmatory of our view. . . Decree made. See "Specific Performance," Century Dig. § 215; Decennial and Am Dig. Key No. Series § 81. Sec. 20.] CONCERNING REAL ESTATE. 315 PARSELL V. STRYKER, 41 N. Y. 480. 1869. Specific Performance of Contract to Devise. [Bill for specific performance of an agreement to devise real estate Decree against defendant, and he appealed. Affirmed. David Parsell contracted to devise tlie locus in quo to the plaintiff, David C. Parsell. The contract was based upon a valuable consideration. David Parsell conveyed the land to the defendant for a valuable consider- ation, but defendant took with notice of the former contract to devise the land to the plaintiff.] James, J. . . . As to plaintiff's equities, it made no differ- ence whether the agreement was to deed the farm at a future day, on performance by plaintiff, or to devise the farm by a will made in the lifetime of the party, a court of equity will decree the specific performance of the latter agreement after death, where otherwise unobjectionable, equally with a contract to convey while living. This question was fully considered and properly decided iu Johnson v. Hubbell, 10 N. J. Eq. 332. On this branch of the case Chancellor "Williamson said : ' ' There can be no doubt but that a person may make a valid agreement, binding himself legally to make a particular disposition of his property by last will and tes- tament. The law permits a man to dispose of his own property at his pleasure ; and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by con- veyance, to be made at some specified future time, or upon the happening of some future event. It may be unwise for a man to embarrass himself as to the final disposition of his property, but he is the disposer by law of his own fortune, and the sole and best .iudge as to the manner and time of disposing of it. A court of equity will decree the specific performance of such an agreement, upon the recognized principles by Avhich it is governed in the ex- ercise of this branch of its j'uri.sdietion." Rivere v. Rivere. 3 Des- sau, 195; Jones v. Martin, 3 Ambler, 882; 19 Ves. 66; 3 Ves. 412; Podmore v. Gurnsey, 7 Simons, 644-654. The validity of an agree- ment to devise land by will was recognized by this court in Steph- ens V. Reynolds, 6 N. T. 458. . . . Judgment affirmed. The case in 10 N. J. Eq., cited in the principal case, discusses the ques- tion fully and cites a great number of authorities which fully sustain the ruling In the principal case. See to same effect, 26 Am. & Eng. Enc. Law, 91; East v. Dolihite, 72 N. C. 562; Price v. Price, 133 N. C. hot. p. 503, 45 S. E. 855. See "Specific Performance," Century Dig. §§ 223, 224; Decennial and Am. Dig. Key No. Series § 86. ALLEN V. TAYLOR, 96 N. C. 37, 1 S. E. 462. 1887. Contract to Convey Realty. Cumulative Remedies of 'Vendor. [Action of ejectment by vendor against vendee. Judgment against de- fendant, and he appealed. Affirmed. Plaintiff contracted in writing to convey the lo us in quo to the defend- ant, who, in turn, contracted to pay the price agreed on. Defendant ■316 CONCERNING REAL ESTATE. [CJl. 3. failed to meet his payments. Plaintiff gave him six months' notice to vacate the premises, and at the expiration of that tim.e sued him for the possession. The statutes of North Carolina require the defendant to file a bond to secure the rents and profits, etc., to the plaintiff, as a condition precedent to being allowed to defend an action of ejectment (provision being made tor defending in forma pauperis). The defendant having failed to comply with this statute, there was a judgment against him (tr want of an answer.] Mbreimon, J. The plaintiff alleges, in substance, that she con- tracted to sell to the defendant the tract of land described in the complaint ; that she executed to him her bond for title thereto, con- ditioned that it should be made to him when and as soon as ho should pay sundry promissory notes, running to maturity at dif- ferent times, given by him to her for the purchase money thereof ; that the defendant failed to pay these notes as they matured, and has only paid a small part of the money due upon them ; that the defendant is and has been in possession of the land ever since the contract of purchase was made ; that he is utterly insolvent ; that the plaintiff gave him more than six months' notice to quit the possession thereof, and to surrender the same to her, which he re- fused to do. This action is brought to recover such possession. At the appearance term the plaintiff filed her complaint, and, this being an action to recover the possession of land, she insisted that the defendant should not be allowed to answer the same until he should give a proper undertaking as required by the statute (Code, § 237) in such eases. This he refused to do, contending that the statute does not apply to and embrace cases like this. The court held otherwise ; and, the defendant having failed to give the undertaking, it gave judgment for the plaintiff, from which the defendant appealed to this court. It is well settled that the pur- chaser of land, when let into possession under the contract of pur- chase, is simply an occupant of it at the will of the vendor, and he so continues until the purchase money shall be paid. The vendor may at any time put an end to such occupancy by demand- ing possession after reasonable notice to quit ; and, if it be not sur- rendered, then he may at once bring and maintain an action to re- cover the possession. The occupancy is by permission, and there- fore lawful, and hence the occupant is entitled to reasonable notice to quit. It has been held in one case that three weeks is sufficient notice. This, however, may depend on the circumstances. Carson V. Baker, 15 N. C. 220; Love v. Edmonston, 23 N. C. 153; Butner v. Chaffin, 61 N. C. 497. . . The vendor has two remedies that he may adopt to collect his debt, — one in personam, to compel the vendee to pay it, the other in rem, to subject the land to its payment, — and^e may prosecute both these remedies at the same time, and in the meantime he is entitled to have possession, and can maintain an action to recover the same under the present method of civil procedure, just as he might have done under that formerly prevailing. We cannot conceive of any just reason why this may not be so, and this court has repeatedly declared that it may be done. Jones v. Boyd, 80 N. C. 258 ; Thompson v. Justice. 88 N. C. 269. As between the vendee and vendor, the latter is on Sec. 20.] CONCERNING REAL ESTATE. 317 the footing of a mortgagee, and a mortgagee may maintain an ac- tion, now as formerly, against the mortgagor for the possession of the land mortgaged. Ellis v. Hussy, 66 N. C. 501 ; Green v. "Wil- bar, 72 N. C. 592; Hemphili v. Ross, 66 N. C. 477. The plaintiff states such a cause of action as obviously entitles her to the possession of the land described in the complaint, in the absence of an answer and any defense pleaded. She is entitled to the judgment granted by the court below, as the defendant failed to answer. There is not the slightest reason why he could not be required to give the undertaking before being allowed to answer as required by the statute. Code, § 237. He comes within its let- ter and spirit. Such undertaking is intended to secure such costs and damages as the plaintiff may recover in the action, including damages for the rents and profits. Nothing to the contrary ap- pearing, the plaintiff was entitled to recover costs and damages. The complaint contains unnecessary and redundant matter, but nothing appears that hinders the plaintiff's recovery. The judg- ment must be affirmed. See Credle v. Ayers, 126 N. C. 11, 35 S. E. 128, inserted at sec. 18, ante. See "Costs," Century Dig. § 422; Decennial and Am. Dig. Key No. Series § 107; "Vendor and Purcliaser," Century Dig. §§ 837-842; Decennial and Am. Dig. Key No. Series § 299. BRAME V. SWAIN, 111 N. C. 540, 15 S. E. 938. 1892. Contract to Convey Realty. Cumulative Remedies of Vendor. [Action for the price of realty and specific performance of the contract of purchase. Judgment against the plaintiff dismissing the action, and he appealed. Affirmed as to refusing specific performance, and reversed as to refusing judgment for the debt. Brame contracted to convey land to Swain, and Swain contracted to pay the price in four installments. This action was commenced after two installments were past due but before the other two were due. The plaintiff demanded judgment (1) in personam for all the installments; and (2) that the land be sold for the satisfaction of his claim. The judge denied any relief to the plaintiff.] Shepherd, J. "Where a contract is made for the sale of land, the purchase money to be paid in annual installments, and the vendee is let into possession, the vendor cannot maintain an ac- tion for specific performance until the last payment is due. The relation between such parties is substantially that subsisting be- tween mortgagee and mortgagor, and governed by the same gen- eral rules (Jones v. Boyd, 80 N. C. 258) ; and, in the absence of a stipulation to that effect, a mortgage cannot be foreclosed until the maturity of all of the notes which it is given to secure (Harshaw V. McKesson, 66 N. C. 266). These authorities fully sustain his honor in declining to decree a sale of any part of the land. "We think, however, there was error in refusing the plaintiffs a per- sonal judgment on the notes actually due at the commencement of the action. There is nothing in the contract of sale which either 318 CONCERNING REAI, ESTATE. [CJl. 3. expressly or by implication amounts to an agreement to suspend the personal remedy; and in Harshaw's Case, supra, in which a foreclosure was denied, the court explicitly declared that "the plaintiffs, if they had seen proper, might have proceeded in an action at law to recover the installments as they became due, but they could not have a foreclosure until the day of redemption was passed." See, also, Allen v. Taylor, 96 N. C. 37, 1 S. E. Rep. 462. The principle stated in Harshaw v. McKesson, 65 N. C. 688, that where a mortgage is executed to secure a note previously given, there is an implied promise to suspend the personal remedy, has no application to the facts of this case. Modified. See Harshaw v. McKesson, 66 N. C. 266, inserted at ch. 3, sec. 18, ante. It the vendor in a contract to convey realty die, an action against the vendee for specific performance must be brought by both his real and personal representatives. [But an action in personam for the debt merely, may be brought by the personal representative alone.] Grubb v. Lookabill, 100 N. C. 267, 6 S. E. 390. If the vendee in such contract die, the vendor may proceed against the personal representative of the vendee, but he is not obliged to resort to that remedy, for he may proceed against both the real and personal representatives to have the land sold for the satisfaction of his claim. Harper v. McCombs, 109 N. C. 714, 14 S. E. 41. In an action for specific performance of a contract, the plaintiff must allege and prove that he has performed his part of the contract, or his ability and readiness to do so. Wilson v. Lineberger, 92 N. C. at mid. p. 551, citing several authorities. See "Vendor and Purchaser," Century Dig. § 847; Decennial and Am. Dig. Key No, Series § 302. Sec. 21. Writ op Assistance. knight v. houghtalling, 94 n. c. 408. 1886. Remedy of Purchaser at Judicial Sale to Obtain Possession. [Petition in the cause by Winston and Hargrove, purchasers, for a writ of assistance. The petition was filed in the supreme court, the sale having been made by a commissioner appointed by that court. Writ of assistance ordered. The supreme court, by a judgment in this case, ordered certain lands to be sold by a commissioner appointed by the court. Winston and Har- grove bought the land, paid for it. and took a deed from the commis- sioner. The sale was duly reported and confirmed and the commissioner directed to make title to the land to the purchasers. William H. Wood was in possession of the land and positively and defiantly refused to sur- render it to Winston and Hargrove after oral and written demand for such surrender. Wood was one of the defendants in the original action against whom a judgment for sale had been rendered.] Ashe,. J. We are of opinion, upon the facts of the case as stated in the petition and accompanying affidavits, that the petitioners are entitled to the writ. The writ of assistance is a novel process in this state. We believe it is the first time an application has been made to any court of this state for such a writ. But it has been frequently used in sev- eral of the states. It may be termed an equitable habere facias possessionem, for it is only issued from courts of chancery, and only Sec. 21.] CONCERNING REAL ESTATE. 319 in these cases when the courts have by their decree caused lands to be sold, in which case they will complete the sale by putting the purchaser in possession, when it is withheld by the defendant, or any one who has come into possession pendente lite. It is never issued except when the case is clear, and upon notice to the person in possession — and it "is held to be the appropriate remedy to place the purchaser of mortgaged premises, under a decree of foreclosure, in possession, after he has obtained the sheriff 's deed. ' ' Herman on Executions, § 353, and eases referred to on margin. It is said by the same authority in sec. 354, that ' ' all that is requisite to obtain a writ of assistance, as against the parties, and those claim- ing under them after the commencement of the action, is to fur- nish to the court proper evidence of a presentation of the deed to them, and a demand of the possession, and their refusal to surren- der it." A demand of possession, it would seem, is always neces- sary, but the presentation of the deed to the party in possession may be dispensed with, when it is waived by the conduct of the parties, as in this case, when the party in possession was informed of the sale, the purchase, and the deed as registered, and he makes no question as to these facts, but positively refuses to surrender possession, and sets at defiance the demand of the purchasers. We are of opinion the petitioners are entitled to the writ, and it is so ■ordered. See Rule 19 of the Equity Rules of the United States Supreme Court; 4 Cyc. 290 et seq. For form, see Shiras Equity Practice, 215, and 1 Love- land's Forms of Federal Practice, p. 605. See "Assistance, Writ of," Cen- tury Dig. §§ 1-4; Decennial and Am. Dig. Key No. Series §§ 1-9. That the purchaser's remedy is not confined to the writ of assistance but he may also bring ejectment, see Townshend v. Simon, 38 N. J. L. 239, in- serted at ch. 8, sec. 6, ante. 320 FORMS OF ACTIONS. [Cll. 4. CHAPTER IV. FORMS OF ACTION TO ASSERT RIGHTS OTHER THAN CONCERN- ING REAL PROPERTY. Sec. 1. Actions Ex Contractu and Ex Delicto Distinguished. MOORE V. GREEN, 73 N. C. 394, 396, 397. 1875. Imprisonment for Debt and for Tort Distinguished. [Motion by defendant to vacate an order of arrest issued in the cause. Motion refused, and defendant appealed. Affirmed. Moore sued Green for damages for an alleged libel, and liad Green ar- rested under ancillary proceedings of arrest and bail. Green, after being arrested, made this motion before the judge. Green contended that, as this was a civil action for damages, he could not be lawfully arrested and imprisoned, because the state constitution forbade imprisonment for debt except in cases of fraAid.] Rodman, J. . . . It is contended that an arrest in an action for a libel is in violation of see. 16 of the Bill of Rights of this state, which says : ' ' There shall be no imprisonment for debt in this state, except in cases of fraud." The argument is this: The moment a judgment shall be obtained, the claim for damages is converted into a debt ; the person of the defendant is thereupon liberated, and his liail discharged. For what purpose, then, require bail, who are to be discharged at the first moment when their liability can be of any value ? It is an oppression to the defendant and of no possi- ble benefit to the plaintiff. Dellinger v. Tweed, 66 N. C. 206, is cited as authority for the proposition that the claim for damages is converted into a debt, within the meaning of the constitution, by the recovery of judgment. Undoubtedly, for some purposes, it is. An action of debt may be maintained on it, and a fi. fa. may issue on it. But to construe the above-cited clause of the Bill of Rights as forbidding imprisonment for any cause of action which by judgment would become a debt, would make its prohibition ex- tend to all eases, as every cause of action becomes a debt in one sense when a judgment is recovered on it. Chitty, in his standard book on Pleading, divides all actions into two great classes : Those which are ex contractu and those which arise ex delicto. No doubt, the framers of the constitution had this familiar classification in mind, and in forbidding imprisonment for debt they referred rather to the caiise of action as being ex contractu than to the form it would assume upon a judgment. If they had meant to forbid imprisonment in every civil action, they would have said so. But by forbidding it for debt, they plainly imply that it may be Sec. 1.] FORMS OF ACTIONS. 321 allowed in actions which are not for debt. In forbidding impris- onment for debt as popularly understood, viz., for a cause of ac- tion arising ex contractu, they responded to the general public sentiment ; but I know of no writer on the reform of law who has recommended the abolition of punishment for trespassers and wrongdoers. Such a provision might be humane to the injuring, but it would not be so to the injiured parties. It would withdraw from the state its power to impose a wholesome cheek on violence and wrong, and would tend to license disorders and law-breakings incompatable with the peace and welfare of society. There is no error in the judgment below. The principal case is fully approved in Long v. McLean, 88 N. C. 3, in which case it is said that similar provisions In the constitutions of other states have received a like construction, citing therefor Harris v. Bidgers, 57 Ga. 407; McCook v. State, 23 Ind. 127; Lathrop v. Singer, 39 Barb. (N. Y.) 396; People v. C!otten, 14 111. 414. That a judgment for damages consequent upon a tort, is not a debt ex contractu, and as such protected by art. 7, sec. 10, of the constitution of the United States, is ruled in Louisiana v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211. See "Arrest," Century Dig. §§ 8-12; Decennial and Am. Dig. Key No. Series § 4. RICH V. N. Y. C. & H. R. R. Co., 87 N. Y. 382. 1882. Various Definitions of Tort. Tort Arising out of Contract. [Action for damages. Judgment against plaintiff dismissing the action, from which he appealed. Reversed. Plaintiff alleged several contracts between himself and the defendant relative to the location of a passenger station in close proximity to plain- tiff's business house; that defendant had on several occasions broken such contracts and then renewed them upon valuable concessions being made by plaintiff; that at length, with a view to coercing plaintiff to further and ruinous concessions, the defendant had, regardless of its contracts to the contrary, closed the passenger station, thereby causing great loss and damage to the pl-aintift by reason of the deterioration in the value of his property as the direct consequence of such acts of the defendant; that "in all of which the defendant was actuated by malice and vindictiveness toward the plaintiff, and a design to crush, ruin and destroy him." The questions presented are: (1) Did defendant's mali- cious purpose in breaking its contract constitute a tort for which an action of tort would lie? (2) Was the cause of action set up in the complaint a contract or a tort? The plaintiff offered testimony to establish his cause of action, but it was ruled out by the judge, because he ruled that plaintiff's cause of action as set out in the complaint was in tort, while the proof offered tended to established a breach of contract.] Finch, J. "We have been unable to find any accurate and per- fect definition of a tort. Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a border-land, where the lines of distinction are shadowy and ob- scure, and the tort and the contract so approach each other, and become so nearly coincident as to make their practical separation somewhat difficult. (Moak's Underbill on Torts, 23.) The text- writers either avoid a definition entirely (Addison on Torts), or frame one plainly imp.erfect (2 Bouvier's Law Diet. 600), or de- Remedies — 21. 322 FORMS OF ACTIONS. [Cll. 4. pend upon one which they concede to be inaccurate, but hold suffi- cient for judicial purposes. (Cooley on Toi*ts, 3, n. 1 ; Moak's Un- derbill, 4; 1 Hilliard on Torts, 1.) By these last authors a tort is described in general as " a wrong independent of contract. ' ' And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with, a contract (2 Bouv. supra), and that pre- cisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. Cooley on Torts, 90.) In such cases the tort is dependent upon, while at the same time independent of, the contract, for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. 1 Addison on Torts, 13. Ordinarily, the essence of a tort consists in the violation of some duty due to an individual, which duty is a thing different from the mere contract obligation. When such duty grows out of relations of trust and confidence, as that of the agent to his princi- pal or the lawyer to his client, the ground of the duty is apparent, and the tort is, in general, easily separable from the mere breach of contract. But where no such relation flows from the constituted contract, and still, a breach of its obligation is made the essential and principal means, in combination with other and perhaps inno- cent acts and conditions, of inflicting another and different injury, and accomplishing another and different purpose, the question whether such invasion of a right is actionable as a breach of con- tract only, or also as a tort, leads to somewhat difficult search for a distinguishing test. In the present case, the learned counsel for the respondent seems to free himself from the difficulty by practically denying the ex- istence of any relation between the parties, except that constituted by the contract itself, and then, insisting that such relation was not of a character to originate any separate and distinct legal duty, argues that, therefore, the bare violation of the contract obligation created merely a breach of contract, and not a tort. He says that the several instruments put in evidence showed that there never had been any relation between the plaintiff and the railroad company, except that of parties contracting in reference to cer- tain specific subjects, by plain, and distinct agreements, for anj' breach of which the parties respectively would have a remedy, but none of which created any such rights as to lay the foundation for a charge of wilful misconduct or any other tortious act. Upon this theory the case was tried. Every offer to prove the contracts, and especially their breach, was resisted upon the ground that the complaint, through all its long history of plaintiff's grievances, al- leged but a single cause of action and that for a tort, and, there- fore, something else, above and beyond and outside of a mere breach of contract, must be shown, and proof of such breach was immaterial. From every direction in which the plaintiff ap- proached the allegations of his complaint, the same barrier ob- structed his path and excluded his proof. Whatever may be true of the earlier agreements between the plaintiff and the railroad company, and conceding, what seems probable, that the evidence Sec. 1.] FORMS OF ACTIONS. 323 relating to them was properly rejected, on the ground that they left the defendant entirely at liberty to change the site of its depot, so that such change was in no respect either unlawful or wrong, there was yet a later agreement by the terms of which the defend- ant was bound, as soon as practicable and within a reasonable time, to restore the depot to its old location. The complaint explains the importance of such restoration to the plaintiff. It alleges that valuable property of his, heavily mortgaged, had depreciated in value in consequence of the removal of the depot, and could only be restored to something like its old value, and saved from the sac- rifice of a foreclosure in a time of depression, by the prompt re- turn of the depot to its former site. The complaint further avers, that to secure this result, the plaintiff had surrendered valuable riparian rights to the defendant, but the latter, fully understand- ing the situation, maliciously and wilfully broke its agreement, and delayed a restoration of the depot for the express purpose of preventing plaintiff from being enabled to ward off a foreclosure of the mortgage, and itself instigated such foreclosure and caused the ultimate sacrifice. For the breach of this contract to restore the depot within a reasonable time, the plaintiff had a cause of action. But that was not the one with which he came into court. His complaint was for a single cause of action, and that for a tort ; and what that alleged tort was, it is quite necessary to know, and in what respect, and how it differs from a mere breach of contract, in order to determine whether the rejected proofs were admissible or not. There was here, on the theory of the complaint, something more than a mere breach of contract. That breach was not the tort ; it was only one of the elements which constituted it. Beyond that, and outside of that, there was said to have existed a fraudulent scheme and device by means of that breach to procure the fore- closure of the mortgage at a particular time and under such cir- cumstances as would make that foreclosure ruinous to the plain- tiff's rights, and remove him as an obstacle by causing him to lose his property, and thereby his means of resistance to the purpose ultimately sought. In other words, the necessary theory of the complaint is that a breach of contract may be so intended and planned ; so purposely fitted to time, and circumstances and condi- tions ; so inwoven into a scheme of oppression and fraud ; so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its association with the attendant circumstances, a tortious and wrong- ful act or omission. . Assuming now that we correctly understand what the tort pleaded was, and which was conceded to constitute a cause of action, it seems to us quite clear that the plaintiff was improperly barred from proving it. . . He is entitled to prove his cause of action if he can. The judgment should be reversed. . . . When a breach of contract involves a tort, the contract may be waived and redress be had in an action of tort. Manning v. Fountain, 147 N. C. '.i'Z-i FOEMS OP ACTIONS. [Ch. 4. at p. 19, 60 S. E. 645. See next succeeding case and note. See also Bowers v. R. R., 107 N. C. 721, inserted later in this section. As to the difficulty experienced by the court in separating the shadowy and obscure lines of demarkation between actions ex contractu and ac- tions ex delicto, it may not be inappropriate to quote the language of Judge Brown, in State v. Dannenberg, 150 N. C. 799: "Nor can we an- swer affirmatively the inquiry of the attorney-general, 'but is there not somewhere between the buttermilk of the pure in heart and the brandy of the morally stunted a twilight zone, and does not the drink sold by this defendant lie within this zone?' " While in the way of quoting from the attorney-general, it may not be amiss to add the following from the columns of the Durham Herald: "In rounding up his argument In sup- port of the Charlotte ordinance and the right of North Carolina cities to control the near-beer problem with license taxes within their discretion Attorney-General T. W. Bickett said: 'What is near-beer? The testi- mony in this case shows that it is a beverage that finds ready sale as a substitute for real beer. Our bibulous constituents cry for It as children cry for castoria. It is made by the people who make beer, and drunk by the people who drink beer. It looks like beer, smells like beer and tastes like beer. It is served by the same white-aproned many-chinned friends who were wont to comfort us in other days. It is shoved across the old oaken counter and mirrored-back bar, with the picture of Aphrodite springing from the foam, making the illusion complete. And sometimes in the gloaming the alchemy of a shadow projecting from a policeman's expansive back and falling athwart the bar, works a transformation, and suddenly, even as the thirsty one lifts the cup to his lips, near-beer be- comes the real thing. And yet this court is asked to relegate this lusty beverage, this scion of centuries of vats, to the insipid level of soda water. Perish the thought. It proclaims itself in North Carolina as the sole heir and successor to the gaudy fluid. It boasts of its bubble, and sparkle and snap. It says to the disconsolate legions in an arid land, 'I may not be entirely wicked, but try me.' It capitalizes Its kinship with Budweizer and Schlitz. It scorns soda water as Roosevelt scorns a molly- coddle, and lords it over grape juice like a mint julip over a milkshake." See "Action," Century Dig. §§ 160-195; Decennial and Am. Dig. Key No. Series § 27. BULLINGER v, MARSHALL, 70 N. C. 520, 525, 526. 1874. To7't Arising out of Contract. Waiving the Tort and Suing in Contract. [Action commenced in the superior court for the recovery of damages for deceit in the sale of a mule. Defendant moved to dismiss for want of jurisdiction. Motion overruled. Judgment against the defendant, and he appealed. Affirmed. The facts appear in that portion of the opinion which is here inserted.] Pearson, C. J. . The action demands damages for a de- ceit in the sale of a mule and the allegation made out a cause of action which, by the former mode of procedure, would have been classed under "actions ex delicto," as distinguished from "actions ex contractu." At the trial it was moved on the part of the de- fendant to nonsuit the plaintiff, on the ground that the action ought to have been commenced before a .iustice of the peace, as the damages demanded are only one hundred dollars. The constitution ordains, art. IV, sec. 23: "The several justices of the peace shall have exclusive original jurisdiction of all civil actions founded on contract wherein the sum demanded shall not exceed two hundred dollars, and where the title to real estate shall Sec. 1.] FORMS OP ACTIONS. 325 not be in controversy." According to our construction of this section a justice of the peace has not jurisdiction in "actions ex delicto," although the cause of action may grow out of a contract. It being in form, under the old mode of procedure, an action ex delicto, proves that it is not founded on the contract, but is col- lateral thereto. There are cases where a party is allowed to waive the tort and sue in contract, as if one takes my horse and sells it and receives the money, I may waive the tort and sue for ' ' money had and received to my use," and if the sum does not exceed two hundred dollars the jurisdiction belongs to a justice of the peace ; but if the money be not received, my remedy is for the tort, and a justice of the peace has not jurisdiction. So if there be a warranty of soundness in the sale of a horse, the vendee may sue upon the contract of warranty and a justice of the peace has jurisdiction, or he may declare in tort for a false warranty and add a count in deceit (see Williams' notes to Saunders' Reports), in which case a justice of the peace has not jurisdiction — the plaintiff being per- mitted to declare collaterally in tort for a false warranty, in order to enable him to give in a count for the deceit, which of course was in tort. Our conclusion is, that the effect of this section of the constitu- tion is to enlarge the jurisdiction of a justice of the peace by rais- ing the amount to the siun of two hundred dollars, and by extend- ing it to cases founded on contract for unliquidated damages — as in cases of a breach of warranty of soundness and other like in- stances ; but that the jurisdiction does not extend to any matter collateral, although it grew out of the contract, for in such case the action is not founded on the contract. See Froelich v. Express Co., 67 N. C. 1. . . . Affirmed. In Manning v. Fountain, 147 N. C. mid. p. 19, 60 S. B. 645, it is said: "Even if a tort had been committed, growing out of a false and fraud- ulent representation, the plaintifE had a right to waive the tort and sue for money had and received. Such an action is ex contractu and not ex delicto. Winslow v. White, 66 N. C. 432; Bullinger v. Marshall, 70 X. C. 526. Upon this theory it has been held that, where defendant wrong- fully took into his possession timber logs of the plaintiff and sold them and received the money, the plaintiff might waive the tort and sue for the money. Land Co. v. Brooks, 109 N. C. 700, 14 S. B. 315. B converse, it has been held that where the breach of contract involves a tort, the complaining party may waive the contract and recover damages for the tortious injury. Bowers v. R. R., 107 N. C. 722, 12 S. B. 452." See "Jus- tices of the Peace," Century Dig. §§ 116-134; Decennial and Am. Dig. Key No. Series § 38. BRITTAIN V. PAYNE, 118 N. C. 989, 24 S. E. 711. 1896. Waiving the Tort and Suing in Assumpsit. [Civil action in justice's court for one hundred and sixty dollars re- ceived by defendant from the unauthorized sale of timber belonging to plaintiff. Defendant appealed to the superior court, and there moved to dismiss the action for want of jurisdiction in the justice's court. Motion allowed. Judgment against the plaintiff dismissing the action, and he appealed. Reversed.] 326 FORMS OF ACTIONS. [Ch. 4. Clark, J. "Where property is tortiously taken and sold, thc^ owner may waive the tort, and maintain an action to recover the money realized from the sale by the defendant. Land Co. v. Brooks, 109 N. C. 698, 14 S. E. 315; Wall v. Williams, 91 N. C. 477. And this is clearly what the plaintiff did by his complaint in this case. Every intendment being in favor of jurisdiction, if the complaint could have been construed as being either for the tort or to recover the money received by the defendant, this being an action before the justice, the court would construe it to be an ac- tion on the implied contract, in favor of the jurisdiction. Lewis V. Railroad, 95 N. C. 179; Stokes v. Taylor, 104 N. C. 394, 10 S. E. 566; Pulps V. Mock, 108 N. C. 601, 13 S. E. 92. Error. Compare with the principal case and those preceding it, Mann v. Ken- dall, 47 N. C. 192, which holds that jurisdiction cannot be conferred by waiving the tort and suing in assumpsit. No court can take jurlsdicton of the assumpsit that would not have had jurisdiction of the tort "for the reason that the same questions of law arise in each." In Froelich v. Express Co., 67 N. C. 1, plaintiff sued an express company for $164 for not delivering a barrel of wine shipped by express,. After declaring the law as to waiving the tort and suing in assumpsit and giving several instances of it, attention is called to the fact that all the old forms of actions are abolished by the constitution, which provides that there shall be but one form of action in civil cases. It is then said that the plaintiff could have recovered the $164 in an action founded on contract, and whether he declared in contract or tort his recovery would be the same, to wit, the agreed price of the wine. "As the distinction between de- claring in tort or in contract is a refinement abolished by the constitution, taking it in any point of view, this is a civil action founded on contract." The action was commenced in the superior court. The complaint set up the failure to deliver a barrel of wine shipped c. o. d. by plaintiff to a person in Connecticut; that the wine was valued ai $16-k. The sum for which the plaintiff prayed judgment was $250. In the supreme court there was a motion to dismiss for want of jurisdiction, which motion was sustained and the action dismissed — the real subject of the action being $164 due by contract, notwithstanding the prayer for judgment for $250. See "Justices of the Peace," Century Dig. § 310; Decennial and Am. Dig. Key No. Series § 91; "Action," Century Dig. §§ 196-215; Decennial and Am. Dig. Key No. Series § 28. BOWERS V. RAILROAD, 107 N. C. 721, 12 S. B. 452. 1890. Waiving the Contract and Suing in Tort. [Action in the superior court for damages for failure to deliver goods shipped to the plaintiff from Boston. Judgment against plaintiff dis- missing the action for want of jurisdiction. Plaintiff appealed. Re- versed. The complaint alleged the shipment and failure to deliver, and that defendant "so negligently and carelessly conducted itself in regard to the same" that part of the goods were "broken open and scattered to the great damage of the plaintiff of one hundred and forty dollars." Not- withstanding the statement as to the damage sustained, the plaintiff prayed for judgment for three hundred dollars. The questions presented are: (1) If a carrier fails to deliver goods shipped, does an action ex contractu or ex delicto lie against him? (2) May the plaintiff waive the contract and sue in tort?] Sec. 1.] FORMS OF ACTIONS. 327 Merrimon, C. J. It is settled that, under the present method of civil procedure, when the breach of a contract involves a tort, the complaining party may waive the contract, and sue for and recover damages for the tortious injury. In such case, if the dam- ages alleged in good faith are $50, or less, the court of a justice of the peace will have jurisdiction ; if for that or a greater sum, the superior court will have jurisdiction. Bullinger v. Marshall, 70 N. C. 520; Ashe v. Gray, 88 N. C. 190; Norville v. Dew, 94 N. C. 43 ; Harvey v. Hambright, 98 N. C. 446, 4 S. B. Kep. 187 ; Edwards v. Cowper, 99 N. C. 421, 6 S. B. Rep. 792; Long v. Fields, 104 N. C. 221, 10 S. B. Rep. 253. In this case the plaintiffs might have sued for a simple breach of the contract, and if they had done so the superior court would not have original jurisdiction, because the damage alleged was but $140, a demand within the jurisdiction of the court of a justice of the peace. The mere demand for $300 could not give the superior court jurisdiction, because, manifestly, such demand would not be made in good faith, but simply to ap- parently give the court jurisdiction, and the court ought to dis- miss the action. We think, however, that it appears sufficiently from the face of the complaint that the plaintiffs allege, not simply a breach of contract, but a tort, a tortious injury, and damages oc- casioned thereby exceeding $50, so that the court had jurisdiction. A breach of the contract is alleged in general terms, but it is fur- ther alleged, particularly and specifically, that the defendant "so negligently and carelessly conducted in regard to the same that the said mica was greatly damaged, three boxes being broken open and scattered, to the great damage of the plaintiffs of one hundred and forty dollars. ' ' Obviously, these words were intended to allege more than a simple breach of the contract, — a tort, tortious injury. Granting that more appropriate terms for such purpose might have been employed, still the court can see the purpose informally expressed, and as it can, the pleading should be upheld and the jurisdiction sustained. As we have seen, the plaintiff might sue for the tort, and it sufficiently appears that he intends to, and does so. In cases like that under consideration, when the plaintiff in- tends to sue in tort, the distinctive tortious cause of action should be alleged in terms that clearly show the purpose. This is neces- sary to the end the court may see that it, and not the court of a justice of the peace, has jurisdiction. There is error. The court should have denied the motion to dismiss the action. To the end that the judgment may be reversed and the action disposed of ac- cording to law, let this opinion be certified to the superior court. It is so ordered. See Balto etc. Ry. Co. v. Kemp, 61 Md. 619, inserted in section 6 post of this chapter. See "Courts," Century Dig. § 549; Decennial and Am. Dig. Key No. Series § 183. 328 POEMS OF ACTIONS. \('h. 4. "WHITE V. ELEY, 145 N. C. 36, 58 S. E. 437. 1907. Tort or Contract, at Plaintiff's Election. Jurisdiction. [Action for conversion of a sum of money less than $200, commenced in the superior court. Demurrer to the jurisdiction. Demurrer sus- tained and action dismissed. Plaintiff appeals. Reversed. The facts ap- pear in the opinion.] Clark, C. J. The complaint alleges that plaintiff placed with the defendant a horse to sell for him ; that the defendant received for the horse the sum of $149, which he has converted to his own use, and asks for the recovery of the sum so converted, and for arrest and bail of defendant. The defendant demurred ore tenus that the superior court had no original jurisdiction because this is an action on contract. The court sustained the demurrer and dis- missed the action. There is error. ' ' "When the action can be fairly treated as based either on contract or in tort, the courts, in favor of jurisdiction, will sustain the election made by the plaintiff." Brittain v. Payne, 118 N. C. 989, 24 S. E. 711 ; Schulhofer v. Rail- road, 118 N. C. 1096, 24 S. E. 709. The plaintiff could sue either for the tort, the unlawful conversion, or on the contract. Bring- ing the action in one court, when he might have brought it in the other, is prima facie an election. Sams v. Price, 119 N. C. 574, 26 S. B. 170; Parker v. Express Co., 132 N. C. 130, 43 S. E. 603. In such cases the plaintiff may waive the tort and sue in con- tract. Bullinger v. Marshall, 70 N. C. 520; McDonald v. Cannon, 82 N. C. 245 ; Wall v. Williams, 91 N. C. 477 ; Edwards v. Cowper, 99 N. C. 421, 6 S. E. 792; Timber Co. v. Brooks, 109 N. C. 698, 14 S. E. 315. Or he may elect to sue for the tort. Bowers v. Rail- road, 107 N. C. 721, 12 S. E. 452; Purcell v. Railroad, 108 N. C. 424, 12 S. E. 954, 956; Thompson v. Express Co., 144 N. C. 389, 57 S. E. 18. In Froelich v. Express Co., 67 N. C. 1, it was held that the complaint showed that the plaintiff had elected to sue on the contract for a sum less than $200, notwithstanding the action had been brought in the superior court. The judgment dismissing the action is reversed. See "Action," Century Dig. §§ 196-215; Decennial and Am. Dig. Key No. Series § 28. FISHER V. GREENSBORO WATER SUPPLY CO., 128 N. C. 375, 38 S. E. 912. 1901. Action of Tort for Breach of Contract. [Action for damages caused by inefficiency of the water supply fur- nished by the defendant. Verdict for the plaintiff. Plaintiff insisted upon a judgment as upon a recovery for a tort, because, under a statute, such a judgment had advantages over a judgment on a contract. The judge refused to grant such a judgment, and the plaintiff appealed. Reversed. The defendant had contracted with the city ot Greensboro to furnish a water supply up to a specified standard of efficiency. Plaintiff's house was injured by fire, and he alleges that his loss was attributable to de- Sec. 1.] POEMS OF ACTIONS. 329 fendant's failure to perform its contract with the city and its inhabitants, and also the "wilful, tortious, culpable, reckless, and gross negligence" of the defendant to keep a sufficient storage of water for fire extinguish- ing purposes. The third and fourth issues anS the responses thereto were: (3) Did the defendant fail in its contract? Ans. Yes. (4) Was the plaintiff injured by the negligence of the defendant? Ans. Yes.] Cook, J. There is but one question presented : Was the plain- tiff entitled to judgment ex contractu or ex delicto 1 which depends solely upon the nature of the action as brought, — whether for a breach of contract or for negligent injuries. The rule is that where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequent damage, an action on the case, founded on the tort, is the proper action. Bond v. Hilton, 44 N. C. 310, 54 Am. Dec. 552 ; Robinson v. Threadgill, 35 N. C. 41 ; Solomon v. Bates, 118 N. C. 315, 24 S. B. 478. . Upon the verdict the plaintiff moved for a judgment ' ' for the tortious injury and damage done him by the negligence of the defendant," which was refused by his honor, who entered judgment for damage as upon breach of contract, to which plaintiff excepted and appealed. We think the plaintiff was entitled to judgment as prayed for. There was an express and legal obligation upon the part of the de- fendant to provide and furnish ample protection against fires, and a breach of that obligation, and a consequential damage to the plaintiff. Although action may have been maintained upon a promise implied by law, yet an action founded in tort was the more proper form of action, and the plaintiff so declared. He stated the facts out of which the legal obligation arose fully, and also the obligation itself, and the breach of it, and the damage resulting from that breach. Chit. PL 155; 5 Thomp. Corp. § 6340. The ease of Coy v. Gas Co. (Ind. Sup.), 46 N. E. 17, 36 L. K A. 535, is to the same effect, and very similar in facts. In that case the defendant had obligated to supply the town of Haughville and its inhabitants with natural gas. By reason of defendant's negligence and failure to supply the needed gas for fuel during severe winter weather, the plaintiff's child died, on account of which the action was brought. The court there held that the fail- ure to perform such obligation was in itself a tort, and sustained the action. While common-law judgments do not contain any of the precedent facts or proceedings on which they are based, and are comprised of those words only which explain the idea with utmost accuracy and brevity, yet, under our system of pleading and practice, courts are required to frame their judgments so as to determine all the rights of the parties, as well equitable as legal (Hutchinson v. Smith, 68 N. C. 354) ; and, being a final determina- tion, should contain every element of the action necessary to enable the successful party to obtain the fullness of his recovery. The defendant in this action is an incorporated company, and the plaintiff insists that, under section 1255 of the Code, an execution issued upon a judgment founded on an action for tort has superior advantages, in its enforcement, over executions issued upon judg- 330 FORMS OF ACTIONS. [Ch. 4. ments founded upon contracts. As to this, however, we do not express an opinion, as that question is not before us. Let the judgment of the court below be entered according to this opinion. Error. See Nevin v. Pullman Palace Car Co., 106 111. 222, 46 Am. Rep. at p. 697, inserted at sec. 3 of this chapter. See F. & W. Mfg. Co, v. Beckett, 79 N. E. 503, 12 L. R. A. (N. S.) 924, and elaborate note. See "Action," Century Dig. §§ 160-195; Decennial and Am. Dig. Key No. Series § 27. GATES V. KENDALL, 67 N. C. 241. 1872. Forins of Action Ex Contractu and Ex Delicto under the Code Practice. Declaration in Tort, Recoi>ery in Contract. [Action to recover damages for alleged conversion of plaintiff's cotton by defendant. Verdict and judgment against defendant, and he appealed. Affirmed. Plaintiff bought some cotton from the defendant. The cotton was paid for and delivered; but placed in defendant's custody. The defendant sold the cotton to another person and collected the proceeds. Prior to such sale by defendant, the plaintiff had sold the cotton to another person, but, of course, had not delivered it. Defendant insisted that, as this ac- tion was for the wrongful conversion, the plaintiff could not sustain the action because he was not the owner of the cotton at the time of the defendant's conversion. The judge ruled otherwise.] BoYDEN, J. In this case it is contended, that the plaintiff cannot recover, for the reason that although this is a civil action, it is in the nature of an action of trover, and that at the time of the al- leged conversion the plaintiff was not the owner of the cotton al- leged to have been converted. It is true, that to sustain an action of trover, according to the principles of the common law, the plaintiff must, as a general rule, be the owner of the property at the time of the alleged conversion, so that if this had been an action of trover, under our former system of pleading, the plain- tiff could not recover. In our case it is not even pre- tended that there is any substantial defense to this action ; the main objection to the recovery being, that the plaintiff, in his com- plaint, has alleged and set out a ease in trover, when the case, as proved on the trial, shows that it should have been in the nature of an assumpsit for money had and received. It would be a viola- tion of one of the most important provisions of the new code, to permit a party to defeat a recovery, upon the sole ground that the form of the complaint is not just as it should have been, from the facts established by the proofs in the ease. To allow such an objection now to avail a party would be to defeat that great and vital principle of the new code and constitution, which declares that there shall be but one form of action, and it would incorporate into our new system all the mischief and intricacies touching the form of action intended to be obviated by that provision. Xo such objection can be permitted to defeat a recoverJ^ The 135th section of the C. C. P. enacts that "the court, and the judge thereof, shall in every stage of the action disregard any error or defect in the Sec. 1.] FORMS OP ACTIONS. 333 pleadings or proceedings which shall not affect the substantial rights of the adverse party." Judgment affirmed. See "Trover and Conversion," Century Dig. § 214; Decennial and Am. Dig. Key No. Series § 34. WILLIAMS V. RAILROAD, 144 N. C. 498, 504, 505, 57 S. E. 216. 1907. Foms of Action Ex Contractu and Ex Delicto under the Code Practice. Tort for Breach of Duty to the PiciHc, Arising Ex Contractu. [Action to recover damages because defendant failed to stop its train to take plaintiff on board as a passenger. Verdict and judgment against plaintiff, and he appealed. Reversed. The plaintiff alleged that the defendant negligently failed to stop the train where it should have stopped for passengers to get aboard, etc. He further charged that the defendant wilfully disregarded the plain- tiff's rights in refusing to stop, etc. The judge charged that if the failure to stop was wilful and intentional the plaintiff could recover, because he had sued in tort; but if the failure to stop was merely negligent, plaintiff could not recover, because he had sued in tort and not in contract; that plaintiff might have sued in con- tract, and if he had done so, he could have recovered for negligence, be- cause such negligence would have constituted a breach of the contract which the railroad "had with the people generally; " that such breach would entitle the plaintiff to nominal damages at least; that if the de- fendant acted wilfully and intentionally, plaintiff could recover punitive damages in this action. The question presented is: Is there any dis- tinction between tort and contract in actions for wrongfully failing to stop a train for passengers to get aboard?] Walker, J. [After discussing the liability of the defendant for punitive damages if it wilfully refused to stop, etc.] . . We might vi'ellstop here and rest our decision upon the clear and explicit statement of the law as contained in the cases cited, but for the fact that, while the court charged correctly as to punitive damages, it withdrew from the consideration of the jury the ques- tion of actual or compensatory damages altogether, and restricted the recovery to nominal and punitive damages, and charged that they could be recovered only in case the jur\' found that the en- gineer wilfully refused to stop the train. This charge was given because, as his honor stated, the plaintiffs had sued in tort, and not in contract, and that mere inattention on the part of the en- gineer, or a negligent failure to stop the train, would not entitle the plaintiffs to recover as for a tort, and, further, that they could not recover actual damages, because none had been alleged or proven. We are not aware of any authority distinguishing be- tween tort and contract in respect to the right to recover in actions of this kind. All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs, which is denominated a civil action (Revisal 1905, § 354), and the court gives relief according to the facts alleged and established. Clark's Code (3d ed.), § 133, and notes; Sams V. Price, 119 N. C. 572, 26 S. E. 170; Bowers v. Railroad, 107 N. C. 721, 12 S. E. 452; Voorhees v. Porter, 134 N. C. 591, 332 FORMS OF ACTIONS. [Cll. i. 47 S. B. 31. The complaint ia this case is the product of a careful and skillful pleader, knowing his client's cause of action and able to state it with accuracy and precision. Its allegations are abund- antly sufficient to cover every phase of the evidence, and it is other- wise sufficient in' substance and in form. The plaintiffs have al- leged, not only a willful disregard of their rights, but negligent inattention on the part of the engineer ; and whether it is in tort or contract can malie no difference. The law does not deal with forms, but with facts. There was error in the charge, so far as it -denied to the plaintiffs the right to recovery for mere negligence. The error of the court in confining the plaintiffs' right of re- covery to the narrow limits stated in the charge entitles them to another trial. New trial. See "Carriers," Century Dig. § 1075; Decennial and Am. Dig. Key No. Series § 274. N. C. LAND CO. V. BBATTY and BENNETT, 69 N. C. 329. 333-335. 1873. Joinder of Tort and Contract in the Same Action. Multifariousness. [Action to recover money alleged to be due for commissions. Judg- ment against defendants, and they appealed. Reversed. Plaintiff alleged a contract with the defendant Beatty, by which plain- tiff was to be paid a commission for selling land which Beatty asserted to belong to him; that Bennett was present and knew of this contract and assertion of Beatty's; that plaintiff brought about the sale and thereby became entitled to the commissions under the contract with Beatty; that after the sale the land was found to belong to Bennett and not to Beatty; that both refused to pay the commissions due the plaintiff; that in mak- ing the representations to the plaintiff as to the ownership of the land, and in procuring plaintiff's services, etc., "the defendants were guilty of fraud upon the plaintiff, and plaintiff believes they are jointly and severally liable to the plaintiff to the amount of the commissions claimed by virtue of the contract, or as damages for the fraud." Demurrer by defendants for misjoinder of causes of actions — one a money demand claimed under a contract with Beatty, to which contract Bennett was not a party; the other, to recover damages for a fraud, tort, alleged to have been perpetrated by both defendants. Demurrer overruled.] Rodman, J. . The question before us is, can the plain- tiff join in the same complaint a count (or cause of action) in con- tract against one of the defendants, with a count (or cause of ac- tion) on the fraud of both? Prior to the C. C. P. it is clear that at law such a misjoinder was demurrable. 1 Chit. PL 331 ; Chamberlain v. Robertson. 52 N. C. 12. In equity multifariousness was not allowed in a bill. 1 Dan. Ch. Pr. 384; Boyd v. Hoyt, S. Paige, 65. Multifariousness is well defined in Story Eq. PI. § 271, and in Bedsole v, Monroe, 40 N. C. 313. By either definition this action would be multi- farious. But it is contended that the joinder is allowed by sec. 126, C. C. P. This says: "The plaintiff may unite in the same complaint several causes of action whether they be such as have been hereto- Sec. 1.] FOEMS OP ACTIONS. 333 fore denominated legal or equitable, or both, where they all arise out of: (1) The same transaction, or transactions connected with the same subject of action; (2) Contracts express or implied; or (3) Injuries with or without force, etc. But the causes of action so united must all belong to one of these classes, and . must affect all the parties to the action, . . . and must be separately stated." The argument of the plaintiff must be that under the first clause he could unite any number of causes of action belonging to all of the after enumerated classes, provided only they all arose out of the same transaction, or out of distinct transactions concerning the same subject of action. It is easy to see that this construction would produce all the inconvenience and confusion which it was the object of all the rules regulating the joinder in action to pre- vent. Take an example : A lends a horse to B who sells him to C. The sale is one transaction, but it may give rise to several causes of action of different kinds, and between different parties. A may have an action of trover against B or C. B may have an action for the price. C may have an action for deceit ; and if the sale were to C in trust for D, he might have an action. If we sup- pose two transactions about the same horse, the number of pos- sible actions about the same subject becomes much greater. It cannot be possible that all these numerous actions between differ- ent parties, and having no common bearing or connection, except that the subject of all is the same horse, can be united. It is difficult to give any exact meaning to that clause. Perhaps it was not intended to make a distinct class; for it is not united as all the following clauses are, by the conjunction "or." Or, per- haps it is an imperfect attempt to condense the rule of equity by which all persons having rights or estates in the same subject matter (as for example devisees, heirs at law, creditors and a widow, in the estates of decedents) may by one proceeding obtain an adjustment of all their respective claims. However this may be, the clause has no bearing on the present question. These re- main the classes of contract, injury, etc. Any number of causes of action belonging to any one of these may be united, provided they all affect the parties, but no two belonging to different classes. Judgment below reversed and demurrer sustained. See "Action," Century Dig. §§ 378-547; Decennial and Am. Dig. Key No. Series §§ 43-51 WILT V. WELSH, 6 Watts (Fa.), 9, Smith's Cases L. P. 329. 1837. Tort Growing Out of Contract. Waiving Contract and Suing in Tort. Application to Infant's Contracts. [Welsh sued Wilt in trover. Wilt pleaded infancy. Judgment against Wilt, who carried the case to the supreme court by writ of error. Re- versed. The Infant, Wilt, hired Welsh's horse to go to one place, hut Instead of abiding by the contract, he drove the horse to another place. The death of the horse was the result. Welsh claimed that the act of the infant in driving to a different place from that specified in the contract. •334 FORMS OP ACTIONS. [Gil. 4. was a tort and that the infant was liable, since infancy is no defense to a tort. The infant contended that his liability, if any, could only arise out of the contract, between himself and Welsh, under which the horse was hired; that the driving to a different place from that contracted for, was a breach of the contract and not a tort; and as an infant is not liable for Ills contracts of this kind, if he chooses to avoid them, his plea of infancy is a good defense. The judge below held with Welsh and against Wilt, the infant. The supreme court held with Wilt, the infant, and against. Welsh.] Gibson, C. J. It would have been sufficient to rest the decision oi this cause on the precedent of Penrose v. Curren, 3 Rawle, 351, if the point had not since been ruled differently by the court of errors of New York; but a respect for the opinion of that court, renders it proper to re-examine the question on principle and au- thority. The ground of the New York case (Campbell v. Stakes, 2 Wend. 137) is that a positive breach of the contract is a dis- affirmance which works a dissolution of it and reduces the infant to a level with an adult who is chargeable with a conversion, for any act which subverts the nature of the bailment. That would, indeed, bring the common-la^v principle of protection within a narrow compass; for there are few breaches of bailment that are not subversive of it. The supposed act of subversion, in cases like the present, is the overworking of a horse or the otherwise abusing of the thing bailed, which, by the way, is at the same time an in- disputable breach of the contract, and ground sufficient for an action on it. This being so, it remains to be seen whether an in- fant is chargeable for it- in the shape of a tort. There are two cases (Powel v. Layton, 2 N. R. 365. and Weall v. King, 12 East. 452) in which it is maintained that even an adult is not. . But Campbell v. Stakes, though entitled to less authority merely as a decision, being the judgment of a popular court, yet distinctly enough discloses the foundation of the doctrine. The contract, it was justly said, comprises a promise to keep the thing from harm and return it at the stipulated time ; for a negligent breach of which, it was admitted, the infant would not be liable as for a tort. But it was said that any positive act of injury inconsistent with the contract, would disaffirm it and leave him liable as if there had never been a contract. What is that but to make him a tortfeasor by construction? It is scarce maintainable, however, that a positive breach of the contract is an unqualified disaffirmance of it. Where the infant intended no disaffirmance, I am unable to see how the adult shall intend it for him, or insist that he rescinded the whole by perhaps an inconsiderable breach of a part. However con- venient such a pretext might be to add a new responsibility to the predicament of the bailee or to extricate the bailor from an old one, it is to be remembered that the exercise of the privilege is not for the adult but for the infant. I know nothing, nor did I ever be- fore hear, of a constructive election to disaffirm in order to strip an infant of his privilege, and, by turning him from a contractor into a trespasser, to put him in a worse condition than if the con- tract had been indefeasible. Such a construction is not in keeping with the benign principles of the common law, which, in other Sec. 1.] FORMS OF ACTIONS. 335 cases, holds him only to such acts as are beneficial to him, and de- clares such as are positively detrimental to him to be positively void. Even were that otherwise, yet to give to an injury done to the thing bailed the character of an independent trespass, would require the bailment to have been first terminated; for the very foundation of the argument is, that the contract was out of the way at the time; but by the most attenuated construction, its cessation and the inception of the wrong, could be but simul- taneous. On what principle, then, can it be a. trespass? The dis- tinction taken in the Six Carpenters' Case, 8 Coke, 146, betwixt an authority given by the law, whose abuse makes the offender a trespasser from the beginning, and a license by the party, whose abuse does not, has never been questioned. The killing of a beast distrained by the grantee of a rent charge makes not the distress a trespass, because it is given by the grant and not by the law. 1 Inst. 141. The reason is that a party is entitled to the best pro- tection the law can give against an abuse of an authority dele- gated not by himself but by the law, which to that end, makes void everything improperly done under it; while a party who gives an authority to an luisafe person has only himself to blame for it. 6 Wils. I3ac. 561. Now taking for granted that the act annihilated the contract ; it cannot be denied that there was a prec- edent license, for an excessive use of which the infant is sought to be charged as for a trespass; with what pretense of reason, when an adult could not be so charged, it is unnecessary to say. The theoiy on which a breach of contract has been thus turned into a trespass, is as incomprehensible to me as the theory on which a common recovery bars an entail; and why we should employ any juggle whatever to tear from an infant the defenses with which the law has covered his weakness, is equally incomprehensible. In the American courts, the hardship of particular cases, as in the earlier decisions on the statute of limitations, seems to have run away with the law ; but it is to be remembered that particular hardships are to be borne in giving effect to every general prin- ciple of policy. To fritter away the rule by exceptions such as these, would expose a child of the most tender years to an action for the destruction of a delicate or dangerous instrument thought- lessly or wickedly put into his hands ; for, in contemplation of law, an infant of three years is not inferior in discretion to one of twenty. The mischiefs to which minors are exposed from the cupidity of those whose trade it is to pamper their appetites, are sufficiently depicted in Penrose v. Curren ; and we are not dis- posed to surrender the principle asserted in it. It is clear that the evidence of infancy ought to have been admitted ; and that the court erred also in directing that if the infant hired the horse to go to a particular place and injured him by going beyond it, he was guilty of a conversion. Judgment reversed, and a venire facias de novo awarded. See "Infants," Century Dig. §§ 161-168; Decennial and Am. Dig. Key No. Series §§ 59-62. 336 FORMS OP ACTIONS. [Ch. 4. FREEMAN v. BOLAND, 14 R. I. 39, Smith's Cases, L. P. 331, 51 Am. Rep. 340. 1882. Same Points as in Wilt v. Welsh, Ante. DuRFEE, C. J. The question here is whether an infant or minor who hires a horse and buggy to drive to a particular place, and, who, having got them under the hiring, drives beyond the place or in another direction, is liable in trover for the conversion. We think he is. There are cases in which infancy has been held to be a good defense to an action ex delicto for tort committed under contract or in making it. But that is not this case. The act here complained of was committed, not under the contract, but by abandoning it ; the bailment being thus determined. The contract cannot avail if the infant goes beyond the scope of it. The distinction may be subtle, but it is well settled, and has been often applied in support of actions precisely like this. It is true the contract must be generally put in proof to support the action, but this is because the tort, inasmuch as it is committed by departing from the terms of the contract, cannot be shown without showing the contract, and not because the contract is otherwise involved. Homer v. Thwing, 3 Pick. 492 ; Towne et al. V. Wiley, 23 Vt. 355 ; Fish v. Ferris, 5 Duer, 49 ; Vasse v. Smith, 6 Cranch, 226; Green v. Sperry, 16 Vt. 390; Campbell v. Stakes, 2 Wend. 137 ; Addison on Torts, sec. 1314. . . . Exceptions ovemiled. See "Infants," Century Dig. §§ 161-168; Decennial and Am. Dig. Key No. Series §§ 59-62. BARNES V. HARRIS, 44 N. C. 15. 1852. Same Points as in Wilt v. Welsh, Ante. [Action of tort against a feme covert and her husband for injuries to a horse caused by the wife. Verdict and judgment against plaintiff, and he appealed. Affirmed. The feme defendant borrowed the plaintiff's horse to drive a distance of fourteen miles, and injured it by hard driving and overloading. She acted with negligence and with want of skill and judgment in her treat- ment of the horse, but not wilfully or maliciously. In borrowing the horse the wife acted as agent for her husband. The judge charged that the plaintiff's remedy was on the contract of the husband, and that he could not recover of the wife by electing to sue her in tort.] Nash, C. J. The action was commenced against Jesse Harris and his wife, the present defendant, Matilda Harris, and against Henry Nance, the other defendant. Jesse Harris is dead, and the suit abated as to him ; and the only question raised by the bill of exceptions is, can it be carried on, or survive against the wife? On the part of the plaintiff it is admitted that in the contract of bailment, Mrs. Harris was the agent of her husband, and on it she is not liable ; but it was sought to subject her by deserting the con- Sec. 1.] FORMS OF ACTIONS. 337 tract and suing in tort, upon the ground that a feme covert is an- swerable for her own personal trespasses, and may be sued with her husband, and that if he die pending the action, the suit will not abate as to her. The principle is correct in the abstract, and if the facts set forth in the case amount to such a trespass on her part, then the suit is properly prosecuted against her. All persons are liable for their own tortious acts, unconnected with, or in dis- afBrmance of, a contract. Thus, though an infant cannot be sued upon his contract, except for necessaries, yet he is liable in dam- ages for an assault and battery, and for his slander ; but a person cannot, by changing his form of action, charge him for a breach of contract, as for negligence or immoderate use of a horse. Jen- nings V. Eundall, 8 Term R. 335. In that case, the immoderate use of the horse, which was the gravamen of the plaintiff 's claim, and which had been hired to the defendant, who was an infant, was strongly urged as being a tortious act, which would sustain the action. It was decided that the plaintiff could not recover, because the cause of action grew out of a contract, for a breach of which no action could be sustained. If this were not the law, the protection thrown around infants would, in many cases, be fruitless. A married woman is not personally liable for her con- tracts of any kind ; but if she commit an actual tort, she is liable, and may be sued .jointly with her husband: but it must be an actual tort, as an assault and battery, and not a constructive one, arising from ignorance and negligence. Coke Lit. 180, B. n. 4. It is admitted in this case, that in borrowing the horse from the plaintiff, she was acting as the agent of her husband; and there- fore the attempt is made to charge her in tort. Two tortious facts are alleged — the one overloading the vehicle, and the other im- moderate driving. We understand from the case, that she both loaded and drove the vehicle. Do both or either of these acts amount to such an actual trespass, as to subject her to an action ? We are very clearly of opinion they do not. Both the overloading and the immoderate driving were acts of negligence or want of skill. In the ease of the infant, we have seen that the immoderate driving was not such a tortious act as subjected the defendant to an action of tort. Why should it in a feme covert? Neither was answerable upon the contract, and both are answerable for an actual tort. The case discloses no act of the defendant, Matilda, amounting to such a tort. It is not shown that she struck the horse a blow on the ride. If she had beaten him with a club, or cut him with a knife, whereby he was injured, or his owner de- prived of his services, she would have been answerable — and for an actual tort. We see no error in the judgment. Affirmed. See also Schenck v. Strong, 4 N. J. L. 99; Lowery v. Gate, 64 S. W. 1068, 57 L. R. A. 673, and note elaborately treating the subject of actions in tort brought against infants for acts growing out of, or intimately connected ■with, contracts. The excellent summary of the doctrine, at the end of the note, gives a clear and concise outline not only of the law, but of the con- flicting views entertained on the subject. See "Husband and Wife," Cen- tury Dig. §§ 791-795; Decennial and Am. Dig. Key No. Series §§ 214, 223. Remedies — 22. 338 FORMS OP ACTIONS. [67/. 4. Sec. 2. Actions Ex Contractu. (a) Covenant. JEROME V. ORTMAN, 66 Mich. 668, 33 N. W. 759. 1887. In What Cases the Action of Covenant Lies. [Action of covenant on an instrument not actually sealed. Objection by defendant to the form of the action. Objection overruled and verdict and judgment against the defendant, from which he appealed. Affirmed. A statute in Indiana enacts that "no bond shall be deemed invalid for want of a seal affixed." The instrument sued on possessed all the requi- sites of a bond or covenant except the seal.] Campbell, C. J. In this case the plaintiffs sued defendants in an action of covenant for the violation of the terms of an agree- ment which was executed without any actual seal or scroll, but which was declared to be the act of the parties, in witness whereof they thereunto set their hands and seals. The court below held that the action of covenant was properly brought, and judgment was rendered upon the verdict of the jury for damages shown. It is claimed now by defendants that, the agreement not being actually sealed, assumpsit was the only action permissible; and assumpsit being barred in six years, while covenant is not barred until ten years, the distinction is material and vital in the present case, where more than six years had expired. We have no stat- utory definition either of a covenant or of the action of covenant. "We must therefore go back to the common law. It is claimed by defendants that a covenant is an instrument under seal, and that the action of covenant is confined to sealed instruments. This was generally so at common law, but the definition is not accurate in the order of statement. Covenant at common law is an action upon a deed. It is only because a deed at common law required a seal that covenant has been declared to lie upon a covenant or agreement under seal. It is the question whether the instrument was a deed or not that governs. All sealed instruments are deeds. But even at common law a party could be held sometimes where he had not affixed his own seal at all. Thus the lessee in a king's patent might be sued for a covenant broken, although he sealed no counterpart, because bound by his acceptance. Com. Dig. "Cov- enant." A 1. And in a lease to two persons, one only of whom sealed the counterpart, the same doctrine was laid down. Id. ; Co. Litt. 231a. Several other cases are put in Comyn to the same effect. Implied covenants, before our statutes on the subject, came under this rule. In Pitzherbert's Natura Brevium, ]46A, where the writ of cov- enant is explained, it is said that by the custom of London cov- enant would lie without deed. And the same customary exceptions appears to have existed elsewhere. Com. Dig. Id. It is declared by our statutes (How. St. § 7778) that no bond, deed of conveyance, or other contract in writing, signed by any party, his agent or attorney, shall be deemed invalid for want of Sec. 2 h.] FORMS OF actions. 339 a seal or scroll affixed thereto by such party. At common law the seal alone was the test of the existence of a deed. Our statutes contemplate a signature as equally necessary. The statute just referred to indicates that some other thing than a seal may be considered, abd this can only be the intention of the parties as found in the instrument itself, and the purpose it was intended to serve. There can be no doubt what the agreement before us means. It uses the word "covenant" throughout to indicate what agree- ments the parties were making, which involved the sale and con- veyance of lands when paid for. It was provided that the cov- enants should bind the heirs of the respective parties as well as their representatives; and it recited that the parties thereunto set their hands and seals. This language, and the whole contract taken together, cannot be construed as intending anything else than what would have been an agreement under seal or deed at common law. It is apparent that the failure to seal was inad- vertent. It is the precise case intended by the statute, where an instrument purporting to be a deed is not sealed. There is no ambiguity in the expressed intention. The statute is in harmony with the general policy of our law, which does not require any par- ticular method of sealing, and permits anything to be called a seal which is adopted for that purpose. It does not put specialties and simple contracts on the same footing, but it allows parties who intend to make specialties to have their intent carried out. In a case so plain as the one before us, there is no occasion for pro- longed discussion. The paper purports to be a deed, and is a deed. The judgment must be affirmed. "Debt and covenant are concurrent remedies for the recovery of any money demand, when there is an express or implied contract in any in- strument under seal to pay it: hut, in general, debt is the preferable rem- edy — as in that form of action the judgment is final in the first instance if the defendant do not plead. See Stephens N. P. 1057." Taylor v. Wilson, 27 N. C. at p. 216. See "Covenant, Action of," Century Dig. § 6; Decennial and Am. Dig. Key No. Series § 1. (b) Debt. CASSADY V. LAUGHLIN, 3 Blackford, 134. 1832. In What Cases the Action of Deit Lies. [Laughlin sued, in debt, on an instrument for the payment of two hun- dred dollars — ^to be paid in lumber of such description as the payee might require, at the lowest cash price. The declaration set out the in- strument; that demand had been made for the lumber; that delivery was refused. Demurrer: (1) That debt will not lie, but the proper action was covenant; (2) That the demand was insufficient. Demurrer overruled and judgment against the defendant. After the judgment was rendered, the defendant died and Cassady, his administrator, carried the case to the supreme court by writ of error. Reversed.]. Stevens, J. . . In the decision of this case, we do not think it necessarv to examine both causes of demurrer, as the first 340 FORMS OF ACTIONS. [Gh. 4. point made is a decisive objection. Debt is defined in Bac. Abr. to be an action founded on an express or implied contract, in which the certainty of the sum or duty appears, and "therefore the plaintiff is to recover the same in numero, and not to be repaired in damages by the jury. ' ' Com. Dig. says : ' ' Debt lies upon every express contract to pay a sum certain." Blackstone in his com- mentaries, says : ' ' The legal acceptation of debt is, a sum of money due by certain and express agreement, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. ' ' Indeed, the definition given in all the books amounts to the same thing. The plaintiff must recover in numero and not in damages. The three distinguishing points in the action of debt are that the contract must be — 1st, for money; 2nd, for a sum certain; 3rd, specifically recoverable. The contract in this case is not for money, but for lumber ; and as that is not any certain and specific lumber, being designated only by its price or value, the contract cannot be specifically en- forced by a judgment. It applies equally to all lumber of that value, and no specific judgment could be rendered for it. The sum to be recovered sounds in damages, and may be a greater or less sum. That the recovery should be the amount of the value for which it ought to have been delivered, is granted; but a greater or a less sum might be recovered, for the contract is not to pay the amount in money, but sounds solely in damages for the breach of the contract. If upon a failure to pay the lumber, the demand became, instanter, a liquidated demand for money then being due by specialty, the interest would immediately attach as a legal consequence. But that is not the case here ; for interest may or may not be allowed in the discretion of the court or jury who try the issue. Suppose the defendant below had offered a plea of tender of $200 in money on the day of payment, would it have barred the action? It would not. The defendant had bound himself to de- liver lumber, and the delivery of the specified sum of money named in the contract as the value of the lumber, is not a legal com- pliance with the contract. The payee might be much more or much less damaged, than the amount of the price or value set upon the lumber by the contract. Wilson v. Hickson, 1 Blackf. 230 ; Hedges v. Gray, 1 Blackf. 216 ; Campbell v. Weister, 1 Litt. 30; Bruner v. Kelsoe, 1 Bibb, 487; Watson et al. v. M'Nairy, 1 Bibb, 356; Scott v. Conover, 1 Hals. 222. Per Curiam. The judgment reversed with costs. See "Debt, Action of," Century Dig. §§ 5-10; Decennial and Am. Dig. Key No. Series § 1. Sec. 2 C] FORMS OP ACTIONS. 34J (c) Account. SCOTT V. Mcintosh, 2 Campbell, 238. 1809. When an Action of Account Lies. Assumpsit for commission on the sale of goods, for money paid, for money had and received, and on account stated. Plea, the general issue. This action was brought to recover the balance of an account which had been running between the parties for several years, and which consisted of several thousand items. The plaintiff's case being opened by the attorney-general. Lord Ellenborough said, this being strictly a matter of account, if it was to be investigated in a court of law, the action of account was the proper remedy. I should be fully warranted in stopping the trial and requiring the plaintiff to institute a different mode of proceeding. Those who so wisely framed our jurisdictions did not contemplate a long account between merchants being referred to a jury. This tribunal is quite unfit for such an investigation ; and we have not the necessary time to bestow upon it. Let the plaintiff bring his action of account, and auditors will be ap- pointed, who will do justice between the parties, without pro- ducing any inconvenience to the public. The attorney-general allowed that the action of account was the proper mode of proceeding : but said assumpsit had been brought, in the confidence that the matters in difference would have been referred to an arbitrator, who would have performed the offiee of the auditors. The defendant would not agree to a reference, and the plaintiff submitted to be nonsuited. See "Account," Century Dig. §§ 26-35; Decennial and Am. Dig. Key No. Series § 11. TOMKINS V. WILLSHBAR, 5 Taunton, 431. 1814. When an Action of Account Lies. This was an action for money had and received, and on an ac- count stated ; it was tried before Richards, B. at the Sussex spring assizes 1814, when the defendant objected that the action could not be maintained under the circumstances of the case. The learned Baron reserved the point, but wished the case to go to the jury, who accordingly found a verdict for the plaintiff. The action was brought to recover the balance of a banking account, which had run from 1800 to 1808. In 1808 a balance was struck: between 1808 and 1811 a great many sums had been paid, but no balance struck. The balance now due appeared to be 134 pounds. It was objected on the authority of Scott v. Mcintosh, 2 Campb. 238, that assumpsit was not the proper form of action to try such a cause, but that it ought to be an action of account, and Campbell cited ailb. Evid. 192, and 2 Keb. 781, Lincoln' v. Parr. 34:2 FORMS OF ACTIONS. [Ch. 4. Shepherd, solicitor general, now moved to set aside the verdict and enter a nonsuit, upon the ground that assumpsit could not be maintained. GiBBS, C. J. A sad use is made of these nisi prius cases. I re- member that case: it was a case which it was impossible to try; and there is usually a decency about counsel which prevents them from pressing that to a conclusion which can never be concluded. It is impossible it ever can have been decided, that if, upon dis- secting an account, there appears money due upon certain items, an action for money had and received cannot be maintained. The use of the action of account is, where the plaintiff wants an ac- count, and cannot give evidence of his right without it; but if, by subtracting the amount of the six articles on the one side, from the amount of the nine articles on the other, the plaintiff can make out that a balance is due to him, even of 50 pounds, it is impossible to say that the action of assumpsit will not lie for that balance. Here the plaintiff takes up the balance stated on the account, pro- ceeds with his evidence through many other items, and establishes a balance due. Rule refused. See "Account," Century Dig. §§ 26-35; Decennial and Am. Dig. Key- No. Series § 11. FIELD V. BROWN, 146 Ind. 293, 297-299, 45 N. E. 464. 1896. "Bill for an Account," "Account Render," Assumpsit at Law. Bill for an Account, in Equity. [Action (1) to set aside a settlement; (2) for an account; and (3) for money had and received. A jury trial was refused as to the first two (affirmed), and denied as fo the last (reversed). Only so much of the opinion as discusses the jurisdiction at law and in equity in matters of account, is here inserted.] Hackney, J. . . . Bisp. Eq. § 484, is cited by appellees. It is there said: "While the jurisdiction of courts of chancery in matters of account is limited by the considerations above stated, and perhaps by others, it is. nevertheless, difficult to draw the line with absolute precision. It may, however, be affirmed that, in all cases in which an action of account would be a proper remedy at law, the jurisdiction of a court of equity is undoubted; and that this jurisdiction will extend, moreover, to all cases of mutual ac- counts, and also to cases in which the accounts are all on one side, but are very complicated and intricate, although such accounts would not be cognizable in the common-law action, as not existing between those parties by and against whom account render will lie. In short, the jurisdiction of the chancellor covered all cases for which account render would lie, besides many to which that action did not extend. ' ' Some of the limitations referred to in the section quoted are stated in section 483 of that work: "It must not be supposed, however, that a court of chancery can draw to itself every transaction between individuals in which an account Sec. 2 C] FORMS OF ACTIONS. 343 between the parties is to be adjusted. Its jurisdiction is limited by certain restrictions. A court of equity cannot take cognizance of every action for goods, wares, or merchandise sold and deliv- ered, or for money advanced, where partial payments have been made, or of every contract, express or implied, consisting of vari- ous items, in M'hieh different sums of money have become due, and different payments have been made. . . . "Where the receipts or payments, or both, are all on one side, a bill for an account will not lie. ' ' To clearly comprehend the meaning of the author in these sections, we must look to the definitions of the phrases "bill for account" and "account render." They were formerly em- ployed in the common-law practice to denote the procedure by which an accounting was secured, and, as indicated by Tiedeman, supra, the freqiient inadequacy of the remedy at law or by jury trial gave rise to the equitable remedy. But this did not carry into equity every proceeding to enforce the collection of an unliquidated demand consisting of several items. "The diffi- culty of drawing the line with absolute precision" between those demands of an equitable and those of a legal nature has re-* suited in the more modem action of assumpsit, a legal remedy, and the suit for an accounting, an equitable remedy. Burrill Law Diet. "Account," p. 22; Bouv. Law Diet. "Account," p. 85; 2 Greenl. Ev. §§ 34, 35; Bisp. Eq. §§ 479, 480, 481, 482; Enc. PI. & Prac. pp. 84, 85. In the latter it is said: " 'Account,' sometimes called ' account render, ' was a form of action at common law against a person who, by reason of some fiduciary relation, was bound to render an account to another, but refused to do so. In England the action early fell into disuse. And, as it is one of the most dilatory and expensive actions known to the law, and the parties are held to the ancient rules of pleading, and no discovery can be obtained, it never was adopted to any great extent in the United States. But the action of account was adopted in several states, principally because there were no courts of chancery in which a bill for an accounting lay." Pennsylvania, Connecticut, and Illinois are cited as some of the states adopting the old prac- tice. It is by reason of these changes from the ancient to the modem rules of practice, as here illustrated, that the appellant's second and third paragraphs of complaint presented causes of equitable jurisdiction, and that his first paragraph presented a cause of legal jurisdiction. The former would, under the old prac- tice, have been causes of common-law jurisdiction. The latter is now the action of assumpsit. . We do not think, however, that the dividing line between causes or defenses of equitable and those of legal cognizance is to be ascer- tained by counting the items of account subject to inquiry. If an accounting is necessary or desirable, by reason of the complicated condition of the transactions in dispute, an appeal may be made to the equitable jurisdiction of our courts, either by complaint or cross complaint, seeking such relief. But it has never, in this state, been deemed a cause for equitable relief that one may set forth an account of numerous items. As early as Cummins v. 344 FORMS OF ACTIONS. [Gh. 4. White, 4 Blackf. 356, it was held that "equity has no jurisdiction over accounts, however numerous and important the charges, where there is no mutuality of dealing, and discovery is not re- quired ; but law has. ' ' That there should appear affirmatively some cause for equitable relief, independently of the presentation of numerous items of account, before the equity side of the court will be opened to entertain the question, is manifest. This proposition has been clearly held in Grafton v. Reed, 26 W. Va. 437 ; Bowen V. Johnson, 12 Ga. 9, and Upton v. Paxton (Iowa), 33 N. W. 773. See ch. 8, § 3 (a); 23 L. R. A. (N. S.) 478, 787, 924, and notes. For a very full statement of the practice in the action of account at common law, see the brief at pp. 394-400 of 33 N. C. Reports. For the practice in North Carolina before the adoption of the Code of Civil Procedure, see Rev. Code, pp. 102, 179, §§ 94, 114. See Adams' Eq. *220 for further in- formation on the subject of the action of account at law and the jurisdic- tion of equity in matters of account. See "Account," Century Dig. § 62- 71; Decennial and Am. Dig. Key No. Series §§ 12-14. (d) Asisumpsii. CARROL et al. v. GREEN et al., 92 U. S. 509, 512-514. 1S75. When Assumpsit Lies, and the Origin of the Action. [Plaintiff filed a bill in equity in the United States Circuit Court seek- ing to enforce the personal liability of the defendants as stockholders in a bank chartered in South Carolina. Defendants set up the statute of limitations. The judge held that the cause was not barred and rendered a decree against the defendants, from which they appealed. Reversed. The statute of limitations applicable to this case required actions on the case, and actions of debt grounded upon any contract except a spe- cialty, to be brought within four years. This bill was not filed within four years. Only that portion of the opinion which discusses the actions of debt and case or assumpsit, is here inserted.] Mr. Justice Swayne. . . . The section of the Act of 1852, which is said to create the individual liability here in question, is silent as to who shall sue. The suit was, therefore, necessarily to be brought by and for the benefit of the parties injured. 2 Inst. 650; Com. Dig. Debt, A, 1. Individual liability is repugnant to the law of corporations, and qualifies in this case an exemption which would otherwise exist. Stockholders in such cases are liable according to the plain mean- ing of the terms employed by the legislature, and not otherwise. The section is silent as to a preference to any class of creditors. All, therefore, in this case, stood upon a footing of equality, and were entitled to share alike in the proceeds of the litigation. The remedy against the stockholders was necessarily in equity. Pol- lard V. Bailey, 20 Wall. 521. They were severally compellable to contribute according to the amount of stock they respectively held, and the liabilities of the bank to be met, after exhausting its means, the maximum of the liability of each stockholder not to exceed in Sec. 2 d.} FORMS OF actions. 345 any event twice the amount of his stock. The Bank of Circleville V. Iglehart, 6 McLean, 568, Fed. Gas. No. 860. It is obvious from this statement, that, if there had been a suit at law against the stockholders, debt could not have been main- tained. The action of debt lies on a statute where it is brought for a sum certain, or where the sum is capable of being readily re- duced to a certainty. It is not sustainable for unliquidated dam- ages. 1 Chit. PI. 108, 113; Stockwell v. United States, 13 Wall. 542. "The action of debt is in legal contemplation for the recov- ery of a debt eo nomine and in numero." "Case, now usually called assumpsit," is founded on a contract express or implied. 1 Chit. 99; Metcalf v. Robinson, 2 McLean, 364, Fed. Cas. No. 9,497. Let us apply these tests to the case in hand. Certainly the amount sought to be recovered was not certain, and could not readily be reduced to a certainty; and there was clearly an im- plied promise on the part of the stockholders. The legislature created the corporation, and prescribed certain terms to which the stockholders should be subjected. This was an offer on the part of the state. It could be accepted or declined. There was no con- straint. By taking the stock the terms were acceded to, the eon- tract became complete, and the stockholders were bound accord- ingly. The same result followed which would have ensued under the like circumstances between individuals. The assent thus given and the promise implied are of the essence of the liability sought to be enforced in this proceeding. If a remedy at law were neces- sary, clearly it must have been case. Case is a generic term, which embraces many different species of actions. ' ' There are two, however, of more frequent use than any other form of action whatever: these are assumpsit and trover." Steph. PL 18. "The more legal denomination of the action of as- sumpsit is trespass on the case upon promises. ' ' 3 Woodison 's Lect. 168. This form of action originated, like many others, under the Stat, of Westm. 2, 13 Edw. I, ch. 24, s. 2. Its establishment was strenuously resisted through several reigns. 2 Reeves's Hist. 394, 507, 608. It was sustained, upon full consideration, in Slade's Case, 4 Coke, which was decided in 44 Elizabeth. "When the stat- ute of South Carolina of 1712, here in question, was enacted, the term case was as well understood to embrace assumpsit as any thing else in the law of procedure to which it is now held to apply. Blackstone thought that one of the most important amendments of the law during the century in which he lived was effected ' ' by ex- tending the equitable writ of trespass on the case, according to its primitive institution by King Edward the First, to almost every instance of injustice not remedied by any other process." 4 Com. 442. But if debt were the proper form of action, if this were a suit at law, the result must be the same. The act bars "all actions of debt" grounded upon any lending or contract without specialty, "after the lapse of four years." The contract here was of the class last designated. The statute was only inducement. The im- 346 FORMS OF ACTIONS. [CIl. 4. plied promise of the stockholders to fulfil its requirements was the agreement on their part, and it was without specialty. . . . If a claim like that of the appellees [plaintiffs] sued at law- would have been barred at law, their claim is barred in equity. This proposition is too clear to require argument or authorities to support it. Decree reversed. See "Assumpsit, Action of," Century Dig. § 1; Decennial and Am. Dig. Key No. Series § 1. WILSON V. MURPHEY, 14 N. C. 352. 1832. When Assumpsit Does Not Lie. [Assumpsit tor money due upon a settlement, between plaintiff and de- fendant, of matters arising under a written and sealed lease. Defendant objected to the form o£ action and insisted that the plaintiff should have brought covenant. Objection overruled and judgment against the de- fendant, from which he appealed. Reversed. tlaintift, by the terms of the lease, was to be paid for all necessary rails used in fencing the demised land. The parties came to an accounting, and a balance was found to be due to plaintiff for rails, which balance the defendant promised to pay. Hence plaintiff sued in assumpsit.] RuFFiN, J. I should very gladly decide this small cause for the plaintiff (who is a pauper) , if I could do so without removing the landmarks of the law. We must take it that the sum due him upon the settlement, was for work mentioned in the lease to be done on the plantation, namely, getting rails at a particular price. If so, he still had a remedy on the covenant in the lease, which was executed by both parties. Can he have the inferior one of as- sumpsit for the same thing? If one owe money on a bond and engage by parol to pay it on such a day, he cannot be sued in as- sumpsit. This is not a mere technical rule. All the securities which deeds are intended to create, as to the terms of the contract, in favor of the covenantor, depend on it. If indeed there be no remedy on the deed; if the contract has been rescinded, or aban- doned before breach; if after breach it has been delivered up, or satisfaction entered upon a settlement, then it is different, because there is but one remedy and that on the promise. If one covenant to build a house for another by a particular day and fail, but builds it afterwards and it is accepted, the deed does not bar an action on the quantum meruit, though it may restrict the prices to those specified in it. So if any other executory agreement be rescinded before breach, and in consideration of that, the parties account, assumpsit lies for the balance struck. Why? Because there Iz no remedy on the deed. That was percisely the case of Poster V. Allanson, 2 T. R. 479, and is the footing on which Judge Buller rests his decision, and this was after the case of Moravia V. Levy, before him at Nisi Prius. A partnership was there formed by deed for seven years, and there was a covenant to account an- ISec. 2 d.] FORMS OF actions. 347 nually, and to account and pay at the end of the term. Before the seven years were out they agreed to dissolve, and then to account and pay. They did account, and the action was brought for the sum acknowledged to be due. On the deed no action could by its terms be brought ; and BuUer said the question was, whether the dissolving a previous partnership and settling the account was or was not, in point of law, a sufficient consideration for an ex- press assumpsit, which he clearly held in the affirmative. But no instance can be stated in which after the time limited in the deed for the performance of a duty thereby created, an action can be maintained on a promise to fulfil the covenant, the deed remaining all the while in existence and full force. The reason is, because precisely the same evidence, as to the extent of the demand, and indeed every other matter but the making of the agreements and the terms of them, will support both actions. And whether the law ought, for the certainty of the contract, to take the specialty or the verbal agreement, it is easy for any to judge. Here, for example, the lease fixes the price of the rails. It might be different if that were left uncertain ; for fixing the price is in itself a new agreement, distinct from any provision in the deed; but in the present case, the only further requisite to a full recovery on the deed is, evidence of the quantity; and that is as susceptible of proof in an action on the covenant, by the acknowledgement of the defendant, as it is in assumpsit. There is, then, no new considera- tion for the promise, and the deed remained in force, for it was to be delivered to the plaintiff by the holder, not as far as appears, to be cancelled, but as properly belonging to the only person who then had an interest in it and could take advantage imder it. In such a case, I think no action lies on the promise merged in the existing deed, more than on a promise merged in a deed or judg- ment subsequently taken for the same debt. The case of Codman V. Jenkins, 14 Mass. 93, is an authority in support of the general reasoning I have adopted, and also of the import of Foster v. Allanson, which is cited and commented on by the court. That was the case of a lease for life, and an assignment by the lessor of the reversion : the assignee and the lessee came to an account of the rent in arrear in his time, and the tenant made an express promise to pay it: held, that assumpsit would not li..', but that it ought to be debt or covenant. This seems to me to be in point; and I think there must be a new trial. Judgment reversed. For further information regarding the technical law governing the action of assumpsit, see Bouvier's Law Diet. "Assumpsit." See "Assump- sit, Action of," Century Dig. §§ 27-36; Decennial and Am. Dig. Key No, Series § 6. 348 FORMS OP ACTIONS. [Cll. 4. Sec. 3. Actions Ex Delicto. (a) Trespass Vi et Armis. LOUBZ V. HAPNBR, 12 N. C. 185. 1827. When Trespass Vi et Armis Lies. [Action of Trespass Vi et Armis for purposely frightening plaintiff's •lorses by beating a drum in the public highway. The judge held that the action would not lie, but that trespass on the case should have been brought. Judgment against the plaintiff and he appealed. Reversed. Plaintiff was driving his horses along the public road. Defendant came into the road and beat a drum wilfully and for the purpose of frightening the horses. The horses ran away because of the beating of the drum, and injured plaintiff's wagon.] Tatloe, C. J. All the authorities concur in the position, that whenever the injury is committed by the immediate act complained of, the action must be ttespass; in other words, "if the injurious act be the immediate result of the force originally applied by the defendant, it is the subject of an action of trespass vi et armis, by all the cases ancient and modern, and that it is immaterial whether the injury be wilful or not." Several cases are put to illustrate this rule, as when one shooting at a mark with a bow and arrow, and having no unlawful purpose in view, wounded a man, it was held that trespass was the proper action. So where a person is lawfully exercising himself in arms, and happens to wound an- other, the same action must be brought. Hob. 134. hi actions of trespass, the distinction has not turned either on the lawfulness ■of the act from whence the injury happened, or the design of the party in doing it, to commit the injury; but on the difference be- tween immediate injuries or consequential ones. For if the injury be done by the act of the party himself at the time, or he be the im- mediate cause of it, though it happen accidentally or by misfor- tune, yet he is answerable in trespass. 3 East, 600. It is impossible to doubt from the statement in this case, that the action is properly brought according to all the decisions. For if the wilfulness were a necessary ingredient in the case, it exists here, since the defendant beat the drum for the purpose of fright- ening the plaintiff's horses. It is much stronger than the case of Scott V. Shepherd, for here the act was immediately injurious, without any intermediate agency. If in the case of Scott v. Shep- herd, the injury had been done to the person upon whom the squib first alighted, it would have resembled the case before us, and then there would have been no grounds for the dissenting opinion of Mr. Justice Blackstone, who thought that the first act was complete when the squib lay on the stall where it first fell, and that the in- jury done to the plaintiff after the squib had received two new •directions, was the consequence of, and not done immediately by, the first act of the defendant. The nature of the act done in this case, the time and place where it was done, a wagon and team passing the public road, rendered it probable that injury would be the immediate result, and would Sec. 3 a.] forms of actions. 34& render the defendant liable in the action, though he had no views as to the consequences. For though the bad intention must be al- leged and proved in a charge of felony, it is not necessary to be considered in this action. "Where a man shoots with a bow at a mark and kiUs a man [by misadventure, 4 Blk. *192] it is not felony, an^d it should be construed that he had no intent to kill him, but when he wounds a man, although that be against his will, he shall be said to be a trespasser." 3 "Wils. 408. If the injury done be not inevitable, the person who doth it, or is the immedi- ate cause thereof, even by accident, misfortune, and against his will, is answerable in this action of trespass vi et armis. 1 Strange, 596; Sir T. Jones, 305; Sir T. Raym. 422. For these reasons I am of opinion that upon every ground of law and convenience, as well as the most manifest justice in the particular case, the action was well brought, and the plaintiff, on the proof offered, should have had a verdict. Reversed. See "Action," Century Dig §§ 236-255; Decennial and Am. Dig. Key No. Series § 30; "Trespass," Century Dig. § 16; Decennial and Am. Dig. Key No. Series, § 17. McCLBBS V. SIKES, 46 N. C. 310. 1854. When Trespass Vi et Armis Lies. [Trespass with two counts — (1) Trespass q. c. f.; (2) Trespass vi et armis. Plaintiff abandoned the first count. Verdict and judgment against the defendant on the second count, and he appealed. Affirmed. Defendant entered upon land which belonged to neither plaintiff nor defendant, and drove off plaintiff's slaves who were at work there by plaintiil's orders. The defendant did not touch the slaves. The judge In- structed the jury that upon these facts plaintiff could recover in trespass vi et armis. Defendant excepted. Defendant also objected to the joinder of the two counts; but that point was also ruled against him by the judge.] Battle, J. The objection to the joinder of the count for tres- pass vi et armis to slaves, with that for trespass quare clausum fregit to land, is clearly untenable. The form of the action is the same, requiring the same plea and judgment. This question is too plain to require any reference to authority. We think there is very little more force in the other objection. The defendant's conduct was certainly an unlawful interference with the plaintiff's slaves. He did not touch them, it is true, but his driving them off was a direct injury with force, similar to that of an assault, for which trespass vi et armis is the proper remedy. In the case of Sample v. Bell, 44 N. C. 338. where the action was trespass on the ease, there was no force, either actual or implied. The present is a much stronger case than that of Loubz v. Hafner, 12 N. C. 185, in which it was held that, where the defendant beat a drum near the highway, which caused a team of horses to run away with and damage a wagon, trespass vi et armis was the proper action. The judgment must be affirmed. See "Action," Century Dig. §§ 236-255; Decennial and Am. Dig. Key No. Series § 30. 3M POEMS OF ACTIONS. [CIl. 4. (b) Trespass on the Case. "The action of trespass on the case lies where a party sues for damages for any wrong or cause of complaint for which covenant or trespass will not lie. This action originated in the power given by the statute of Westminster 2, 13 Edw. I, ch. 24, to the clerks in chancery to frame new writs in consimili casu with writs already known. Under this power they constructed many writs for differ- ent injuries which were considered as in consimili casu with, that is, to bear a certain analogy to, trespass. The new writs invented received the appellation of writs of Trespass on the Case — brevia de transgressione super casum . . to distinguish them from the old writ of Trespass ; and the injuries which are the sub- ject of such writs were not called trespasses, but had the general names of Torts, Wrongs, or Grievances. ' ' These writs of Trespass on the Case though issued in various forms, to fit the special cir- cumstances of each case, by degrees formed a new genus which took the name of Trespass on the Case. This genus comprises many species, the most prominent of which are Assumpsit and Trover, which are more used than any other form of action what- ever. " Stephen on Pleading, *17, 18. In 1762 it wa.s said by Lord Mansfield ; ' ' An action on the ease is founded upon the mere justice and conscience of the plaintiff's case, and is in the nature of a bill in equity, and, in effect, is so. Whatever will, in equity and conscience, . . bar the plaintiff's recovery, may, in this action, be given in evidence by the defendant [without being specially pleaded,] because the plaintiff must recover upon the justice and conscience of his case and upon that only." Bird v. Kandall, 3 Burrows, at p. 1355. See "Action on the Case," Century Dig. §§ 1-14; Decennial and Am. Dig. Key No. Series § 1. VAN PELT V. McGRAW, 4 N. Y. 110. 1850. Trespass on the Case. Broad Scope of the Action. [Case for wrongfully and fraudulently removing rails, timber, etc., from land on which plaintiff held a mortgage. .Judgment against the defend- ant, and he appealed. Affirmed. Only so much of the opinion as discusses the form of action, is here inserted.] Pratt, J. There is no doubt but that an action on the case will lie for an injury of the character complained of in this case. It forms no objection to this action that the circumstances of the case are novel, and that no case precisely similar in all respects has previously arisen. The action is based upon very general prin- ciples, and is designed to afford relief in all cases where one man is injured by the wrongfid act of another, where no other remedii is provided. This injury may result from some breach of positive law, or some violation of a right or duty growing out of the rela- tions existing between the parties. 1 Cow. Treat. 3. Sec. 3 &.] FORMS OF ACTIONS. 351 The defendant McGraw, in this case, came into the possession of the land subject to the mortgage. The rights of the holder of the mortgage were therefore paramount to his rights, and any at- tempt on his part to impair the mortgage as a security, was a viola- tion of the plaintiff's rights. But the case is not new in its cir- cumstances. The case of Gates v. Joice, 11 John. 136, was pre- cisely like the case at bar in principle. That action was brought by the assignee of a judgment against a person for taking down and removing a building from the land upon which the judgment was a lien. The plaintiff's security was thereby impaired. The court in that case sustained the action. The decision in that case Avas referred to and approved in Lane v. Hitchcock, 14 John. 213 ; and in Gardner v. Heartt, 3 Denio, 234. Nor is there anything in the ease of Peterson v. Clark, 15 John. 205, which conflicts with the principle of these cases. That was an action by a mortgagee in the usual form of action for waste. The declaration alleged seizin in the plaintiff, upon which the defendant took issue. There was no allegation that the mortgagor was insolvent, or the judgment as a security impaired. The only issue to be passed upon was that in relation to the seizin. It is quite clear that upon such an issue the mortgagee must fail. Now this action is not based upon the as- sumption that the plaintiff's land has been injured, but that his mortgage as a security has been impaired. His damages, therefore, would be limited to the amount of the injury to the mortgage, how- ever great the injury to the land might be. It could, therefore, be of no consequence whether the injury occurred before or after for- feiture of the mortgage. The action is clearly maintainable. See ch. 3, § 8, and ch. 7, § 1. See "Mortgages," Century Dig. §§ 544, 555;. Decennial and Am. Dig. Key No. Series §§ 205, 216. KELLY V. LETT, 35 N. C. 50. 1851. Trespass on the Case and Trespass Vi et Armis Distinguished. Waiving the Trespass and Bringing Case. [Action on the case for breaking plaintiff's milldam. Defendant in- sisted that trespass and not case was the proper remedy, and that, hence, this action would not lie. The judge ruled that this action would lie. Judgment against defendant, and he appealed. Reversed. The facts appear In the opening of the opinion.] Pearson, J. The declaration alleges that the plaintiff was the owner of a mill about one half of a mile below a mill, on the same stream, owned by the defendant; that the defendant repeatedly shut down his gates, so as to accumulate as large a head of water as possible, and then raised them, so as thereby to discharge an immense volume of water, which ran with great force against the dam of the plaintiff and swept it away ; and that this was done by the defendant, wilfully and with intent to do the injury. The only question is, can an action on the ease be sustained. 352 POEMS OP ACTIONS. [CIl. 4. When the act itself is complained of, trespass vi et armis is the proper action. When the consequences only are complained of, then case is the proper action; or, as the rule is expressed in the books, trespass lies where the injury is immediate — case when it is consequential. There is no difficulty as to the rule. The difficulty is as to its application, and it sometimes requires an exceedingly nice perception to be able to trace the dividing line. But this ease is settled by authority, and there is no occasion to resort to reason- ing or to a discussion of principles. In Scott v. Shepherd, 2 Blk. Rep. 892, Grey, C. J., cites a suit from the register, 95a of trespass vi et armis, for cutting down a head of water maliciously, which thereupon flowed down to and overwhelmed another pond, which is our ease. It is true that in some cases, although the injurij be immediate, the 'party has his election, and may waive the trespass and bring case for the consequential damage. As if one take another's horse, he may elect to bring trover (which is an action on the case), or if one in driving his carriage run on that of another, although the damage is immediate, case may be sustained, alleging that the de- fendant so negligenily drove his carriage that it ran against that of the plaintiff and did great damage ; and the defendant is not al- lowed to defeat *the action by averring that the injiiry was more aggravated, for that in fact he drove against the carriage of the plaintiff on purpose and with intent to do the injury. Williams V. Holland, 10 Bing. 116. But if the declaration alleges that the defendant took the horse from the possession of the plaintiff, in- stead of supposing that he found it; or that the defendant ivilfullg drove against the carriage instead of ascribing it to negligence, case cannot be sustained because these allegations are inconsistent with the nature of that action, and it is simply an attempt to re- cover in case for a direct, wilful trespass, which is the peculiar subject of another form of action. To maintain ease, you must waive your ground of complaint on account of the trespass. Day V. Edwards, 5 T. R. 648. It is apparent, then, that this right of election cannot exist except in cases where there is a separate and distinct cause of action besides the trespass. Admitting, for the sake of argument, this to be one of those cases, the plaintiff has no ground to stand on. He has not waived the trespass — ^that is, the burden of his complaint. But it seems to us this is not one of those cases, and we are inclined to think that case could not be maintained, if the declaration has been ever so carefully or skil- fully drawn. Suppose the defendant had planted a cannon on his dam and wilfully fired at the plaintiff's dam until it was demol- ished, it could not be distinguished from the present case — the only difference being in the kind of force. In the one, the dam is destroyed by metal, propelled by the force of gunpowder; in the other, it is destroyed by water, propelled by the force of gravita- tion — the water being kept back on purpose to increase the head and thereby add to the power of the propelling force. Both are neither more nor less than wilful trespass. And although the in- Sec. 3 6.] FORMS OF ACTIONS. 353 tent is not the test of liability, yd, iclien the damage is immediate, it is the test of the proper form of action. If the damage he imme- diate and the act is wilful, trespass is the only form of action. There is no question that the doctrine by which plaintiffs in cer- tain eases are allowed to waive trespass and bring case, which is finally settled by authority, is an indulgence granted on account of the difficulty of tracing the dividing line; and the principle is, that the plaintiff may, without injustice to the defendant, take the most charitable view of the case. But this doctrine only applies when two causes of action are involved ; then one may be waivSd and still leave ground to stand, on ; but if the case involved merely a cause of action for trespass, to allow an election to bring case would be an absurdity — as if one wilfully shoots down another's horse or commits a battery on the person. Judgment reversed, and venire de novo. See "Action," Century Dig. §§ 236-255; Decennial and Am. Dig. Key No. Series § 30. NBVIN V. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 689 1883. Trespass on the Case for Breach of Duty; for Breach of Contract. Case and Assumpsit when Concurrent Remedies. [Action on the case for excluding plaintiff from a sleeping car after en- gaging a berth and tendering the price. Judgment against plaintiff, and he carried the case to the supreme court by writ of error. Reversed. The error assigned is, that the lower court erred in holding that case would not lie. After deciding that the defendant owes a duty to all unobjectionable persons to furnish them berths when it has berths unoccupied and the price is tendered, and that the facts of the case show a breach of such duty; and holding further that, under the facts of this case, the defend- ant was bound by contract to furnish plaintiff a berth, the opinion pro- ceeds to discuss the question presented, to wit: Will an Action on the Case lie for excluding one from a sleeping car after he has engaged his berth and tendered the fare?] MuLKEY, J. . . It is clear, in the present case the defendant utterly disregarded its duty in not making up the berth of the plaintiff, and in not permitting him and his wife to occupy it through the night, and in expelling them from the car, and for this it must be held liable. The view here expressed is believed to be in consonance with the general principles of the law, and is clearly svistained by some of the best considered cases, both English and American. Burnett v. Lynch, 5 Barn. & Cress. 589 ; 11 Bug. Com. Law, 597 ; Hancock v. Coffin,' 21 Eng. Com. Law, 318 ; Dickson v. Clifton, 2 Wils. 319 ; Boorman v. Brown, 3 Ad. & El. (N. S.) 525. In this last case, Chief Justice Tindal, in delivering the judgment in the Exchequer Chamber, entered into an extended review of the authorities, and in summing up used this language : ' ' The principle in all these Remedies — 23. 354 FORMS OF ACTIONS. [Gil. 4. cases would seem to be, that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort," and this case was affirmed on appeal to the House or Lords, 11 CI. & Fin. 44. In this case Lord Campbell, in delivering the judgment in the House of Lords, says : " I think the judgment of the Court of Exchequer Chamber is right, for you cannot confine the right of recovery merely to those cases where there is an employment without any special contract. But wher- ever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of the duty in the course of that employment the plaintiff may recover either in tort or in contract." This, subject to the limitation hereafter to be stated, we regard as the true rule on the subject. It is often and indeed generally stated that the action lies only for the breach of a common-law duty and this we believe to be strictly true ; yet there is some confusion in the cases as to what is meant by a common Imv duty, growing out of the fact that it some- times arises without the intervention of a contract and sometimes with it, and in the latter ease it is often said, as in the case last cited, "the contract creates the duty," and while this is true and accurate enough in a certain sense, yet, when we attempt to define with precision just when the action will lie and when it will not, the statement is not sufficiently definite ; for it must be conceded the law makes it the duty of every one to perform his contract, and it is clear that case will not lie for the breach of every duty cre- ated by contract. If one contracts to deliver to another a load of wood, or pay a specific sum of money on a given day, and fails to do so, an action on the contract alone will lie, and yet it is mani- fest, in the case supposed, there has been a breach of duty created by the contract. We think it more accurate, therefore to say that ease lies only for the breach of such duties as the law implies from the existing relations of the parties whether such relations have been established with or without the aid of a contract ; but if cre- ated by contract it is no objection to the action that the perform- ance of the duty in question has been expressly stipulated for, if it would have existed by reason of such relations without such stipu- lation. This is well illustrated by the case put in the early part of this opinion where B let his horse to A to be kept at a stipulated price per day and returned on demand. Now in that case by the mere delivery of the horse to be kept at the price agreed upon, the law implied or impos'ed the duty of returning him upon demand without any agreement to that effect, and the duty being thus im- plied by law, independently of the express stipulation for its per- formance, case clearly would lie for its breach. The general principle seems to be: Where the duty for whose breach the action is brought would not be implied by law by rea- son of the relations of the parties, whether such relations arose out of contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract, Sec. 3 d.] FORMS OP actions. 355 and not in tort; when otherwise, case is an appropriate remedy. Of course assumpsit is a concurrent remedy with case, in all cases where there is an express or implied contract. . . . Judgment reversed. See Fisher v. Greensboro Water Supply Co., 128 N. C. 375, 38 S. B. 912; Bowers v. R. R., 107 N. C. 721, 12 S. B. 452, and Williams v. R. R., 144 N. C. 498, 57 S. B. 216, all inserted at ch. 4, § 1. See also Solomon v. Bates, 118 N. C. at p. 315, 24 S. B. 478, and Robinson v. Threadgill, 35 N. C. 39, inserted at ch. 8, § 3, d. See "Action," Century Dig. §§ 177-195; Decennial and Am. Dig. Key No. Series § 27. (c) Trover. Trover is one of the forms of trespass on the case and is "usu- ally adopted by preference to that of detinue to try disputed ques- tions of property in goods and chattels. In form, it claims dam- ages ; and is found on a suggestion in the writ — which suggestion is in general a mere fiction — that the defendant found the goods in question, being the property of the plaintiff; and proceeds to al- lege that he converted them to his o^^^l use. ' ' Stephen on Plead- ing, *18, 19. The action of trover is, in form, a fiction; in substance, a rem- edy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods, though the ac- tion lies where the defendant did in truth, get possession of the goods lawfully. Where the taking by the defendant is wrongful and by trespass, if the plaintiff brings trover, he thereby waives the trespass and admits the possession to have been lawfully got- ten ; and hence no damages can be recovered in such action for the trespass in taking the goods. Trover is an action of tort ; and the whole tort consists in the wrongful conversion. Two things are necessary to be proved in trover: (1) Property in the plaintiff; (2) A wrongful conversion by the defendant. Cooper v. Chitty and Blackiston, 1 Burr. 20, 31. See "Trover and Conversion," Century Dig. §§ 103-116; Decennial and Am. Dig. Key No. Series § 13. (d) Replevin. DAGGETT v. ROBINS, 2 Blackford, 415. 1831. The History and Nature of Replevin. [Action of replevin. Defendant pleaded former judgment. Plaintiff demurred to the plea. Demurrer overruled, judgment against plaintiff, and he appealed. Reversed. The facts appear in the opening of the opinion.] 356 FORMS OP ACTIONS. [Cll. 4. Stevens, J. This was an action of replevin, commenced by the appellant against the defendant for certain goods and chattels, vi^hich he alleged the defendant unjustly and unlawful^ took and detained from him. The defendant pleaded in bar that the plain- tiff in the year 1829, in the Vigo circuit court, by an action of replevin against the defendant, replevied the same goods and chattels out of the defendant 's possession ; and that at the IMay term, 1830, of said circuit court, the said plaintiff was nonsuit, and the defendant had judgment for a return of the goods and chattels ; and that they were returned by the sheriff of the county. To this plea the plaintiff demurred, and the demurrer was over- ruled by the court and judgment rendered for the defendant. The principal question is, whether a nonsuit in replevin is a bar to a second replevin. By the common law it would be no bar, but the statute of Westminster 2 (13 Edw. I, st. 1), ch. 2, restrains the plaintiff in replevin from a second replevin after nonsuit, but permits him to proceed with his first action by a writ of second delivery, and if he become nonsuit after the writ of second de- livery, no further proceedings can be had. The counsel for the ap- pellant insists that the record in this case shows it to be an action founded on a statute of the state authorizing the action of replevin in all cases where goods and chattels are unlawfully taken and de- tained, and not governed by the statute of Westminster which re- lates only to replevins founded on a distress for rent. The record does not show whether the action is founded on a distress for rent or not, nor is it material that it should ; the action in either case, when once in court, is governed by the same principles and rules of practice. The record in an action of replevin never shows whether it is bottomed on a distress for rent or not, unless the de- fendant in replevin spreads that fact upon the record by his avowry, cognizance, or other defense which he may make to the action. It is true, that at the time those proceedings were had in Vigo circuit court, there were two statutes authorizing the action of replevin, the one founded on a distress for rent, and the other regulating the proceedings when the action is founded on any other unlawful and unjust taking or detaining of goods and chat- tels. But these acts only provide for the issue and service of the writ, the disposition to be made of the goods and chattels replevied, and the condition and effect of the replevin bond, etc. The plead- ings, prosecution and proceedings in each action, and the judg- ment rendered, and the execution awarded, are the same, except as to costs. The only action now in use is the detinuit and is an action that lies not only in the case of a wrongful distress for rent, but in all cases where goods and chattels are tortiously and unjustly taken and detained; atid our statutes above noticed do not materially change the general doctrine on the subject. The passage in Black- stone's Commentaries, which says that replevin only lies in case of an unlawful distress, is unwarranted, and is contradicted by the best authorities in England and America. Vide 2 Saund. Sec. 3 d.] FORMS OP actions. 357 Plead, and Evid. 760; 1 Chit. PL 119; Bishop v. Montague, Cro. Eliz. 824; Pangburn v. Partridge, 7 Johns. 140; Shannon v. Shan- non, 1 Schoales & Lef. 327; Ilslej- et al. v. Stubbs, 5 Mass. 283. The action of replevin is founded on a tortious taking and detain- ing, and is analogous to an action of trespass, but is in part a pro- ceeding in rem, to regain possession of the goods and chattels, and in part a proceeding in personam, to recover damages for the cap- tion and detention, but not for the value thereof. Vide Hopkins v. Hopkins, 10 Johns. 373; 1 Chit. PL 119; 1 Saund. Rep. 347, b, note 2; Fletcher v. Wilkins et al., 6 East, 283. In England there are two kinds of replevin; tirst, by common law, when the writ issues out of the court of chancery ; second, by the statute of Marlbridge, 52 Hen. 3, which enables the sheriff to make replevins without any writ and then having taken security, proceed on the complaint of the plaintiff, either by parol or pre- cept to his bailiff, and if a claim of property is put in, the writ of de proprietate probanda at once issues, and is tried by an inquest, and if found for the plaintiff, the sheriff goes on to make the re- plevin; but if for the defendant, he forbears. If the writ issues out of chancery at common law, it is only directory to the sheriff to make replevin and proceed in the county court, and is not a re- turnable process. In that case, the writ de proprietate probanda cannot issue until a pluries is issued and returned into the King's Bench or Common Pleas, where a judicial writ may issue. Any of these suits are removable, by either party, into the King's Bench or Common Pleas, to be there determined. If the replevin be by writ in the county court, it must be removed by a pone; if by plaint, it must be removed by a recordari facias loquelam ; if in a court of record that may hold pleas of replevin, it must be re- moved by a writ of certiorari ; and if in a court of another lord, it may be removed by recordari to the sheriff. This much of the law of England is stated to show that there can be no replevin under either the common law, or the statute of Marlbridge, without the aid of our statutes. The English law is founded on the usages and customs of that kingdom, growing out of the relation of landlord and tenant under the feudal system and the aristocratical doctrines of primogeniture, and is local to that kingdom and cannot be in force here. There are no two kinds of replevin in this state as in England, one by plaint and another by writ ; nor is the writ in replevin liable to be defeated by a claim of property as it is in England, where such claim, as before observed, puts an end to the suit, unless it is revived by the writ de proprie- tate probanda. Our writs of replevin are returnable writs and the party is required to appear on the return day. They issue out of the circuit courts as other writs do, and are there returnable; and the suit is docketed, proceeded in, set down for trial and tried, agreeably to the laws and practice of the court as other actions are. The statute of Westminster 2 (13 Edw. 1, st. 1), ch. 2, is applicable only to actions of replevin founded on a distress for rent, and is not of a general nature, but is local to that kingdom 358 FORMS OF ACTIONS. [Ch. 4. and inconsistent with the laws, practice and policy of this state, and therefore not in force. The court, therefore, considers the plea of the defendant in this behalf insufficient in law to bar the plaintiff's action, and that the circuit court erred in overruling the demurrer thereto. Judgment reversed. See "Replevin," Century Dig. §§ 69-82; Decennial and Am. Dig. Key No. Series § 9. DUFFY V. MURRILL, 31 N. C. 46. 1848. Common-Law Action of Replevin. Essentials. DisUnguisJied from, Tro- ver and Detinue. [Action of replevin for a slave. No affidavit was filed as was required by a statute. Action dismissed on motion of defendant, and plaintiff ap- pealed. Reversed. No further statement of facts is necessary.] Nash, J. The error, into which his Honor was betrayed, con- sisted in considering the proceedings as instituted under the act of 1836, when, in truth, it is a proceeding at common law, in which no affidavit is required. The act does not repeal the common-law action, nor supersede it, but simply applies the remedy by replevin to cases, to which it did not extend before. By the common law, a taking by the defendant was necessary to authorize this remedy, and such is the language of the writ ; it is ; " We command you, that justly and without delay, you cause to be replevied the cattle of B which D took and unjustly detains," etc. 1 Fitzh. N. B. 68. Without a trespass by the defendant, the writ could not he used. If the defendant came into possession by bailment, the plaintiff was driven either to his action of trover or detinue. By the latter alone, the possession of the property detained could be regained, and, even then, after much delay, and subjecting the plaintiff often to inconvenience and loss which the tardy recovery would not compensate. Much the most valuable portion of the personal property, owned by the individuals of this state, consists of slaves, who, by artful and designing men having or pretending a claim of right, can be induced to leave the possession of the proprietor and go into that of his opponent. To such a case the common-law remedy of replevin could not apply, because the defendant had not taken the slave ; he did but detain him. It was the intention of the legislature to remedy this evil by giving this writ, whereby the plaintiff might more speedily and surely regain possession of his property. The words of the act are very broad, "replevin for slaves shall be held and deemed sustainable in all cases, etc., where actions of detinue and trover are now proper. " It is unnecessary to inquire here, whether these words, broad as they are, can em- brace every case, in which actions of detinue or trover for a slave may be sustained. It is sufficient for our present purpose, to show that the act of 1836 was intended, not to repeal the common law remedy of replevin in such cases, but to apply it, when by the com- Sec. 3 e.] poems op actions. 359 mon law it could not be used. The writ, in this case, is not issued under the act ; if it had been, the affidavit required in the proviso to the first section would have been necessary, and his Honor would have been right in holding that the plaintiff's proceedings could not be sustained ; but it is at common law. The writ is ' ' then and there to answer the said Charles Duffy, of the taking and de- taining," etc. This is the language of the writ, as set forth in the natura brevium. A taking is charged, and without proving it on trial, the plaintiff cannot entitle himself to a verdict, if the de- fendant pleads no cepit. Cummins v. McGill, 6 N. C. 357; Judg- ment reversed. See "Replevin," Century Dig. §§ 1-3; Decennial and Am. Dig. Key No. Series §§ 1, 2. (e) Detinue. JOHNSTON V. PASTEUR, 1 N. C. 520, 526. 1800. Nature of Detinue. Ancient and Modern Practice. [Action of detinue for a slave. Judgment in the court of conference against the defendant. The opinion is that of the court of conference, which then constituted the highest court in this state. The point pre- sented was, whether or not a husband could sue jointly with his wife, in detinue, for the goods of the wife which the defendant had detained be- fore her marriage. The decision holds that he can. Only that part of the opinion which discusses the action of detinue, is here inserted.] By the Court. (Macay, Taylor, Hall, and Locke.) . . . Some dicta have been shown from the books which seem to counte- nance the idea that the action of detinue for the wife's goods must be brought by the husband alone. But it is probable that if the original cases could be examined, it would appear that such ac- tions by the husband alone were sustained only where the goods had been in his possession during the coverture, either actual or constructive. In that ease the property is completely his own, and the right would devolve to his representatives upon his death, and would not survive to his wife. This is rendered likely by what is said in Viner, Title, Beson & Feme, 30, that the husband and wife may join in detinue for the wife's goods, bailed by the wife before coverture. And so it is said with respect to replevin for her goods taken when she was sole. In addition to this, it is to be remarked, that the action of de- tinue hath, at least in this state, taken a range very wide of its original design, and been applied to transactions which were not formerly conceived to fall within its reach. It is defined in the old books as a remedy founded upon the delivery of goods by the ovmer to another to keep, who will not afterwards deliver them back again. In Fitzh, N. B. 323, and 2 Blk. 152, it is said that, io ground an action of detinue, which is only for detaining, it is a necessary point among others, that the defendant came latv fully 360 FOEMS OF ACTIONS. [67l. I. into the possession of the goods, as either hy delivery to him, or iy finding them: Hence it was that the wager of law was permitted in this action, which grew out of the confidence reposed in the bailee by the bailor. At present, however, the action is applied to every case where the owner prefers recovering the specific prop- erty to damages for its conversion, and no regard is had to the manner in which the defendant acquired the possession. . . . Judgment for the plaintiff. See "Detinue," Century Dig. §§ 4-11; Decennial and Am. Dig. Key No. Series §§ 3-6. PETERS V. HEYWARD, Cro. Jac. 682. 1626. Form of Judgment and Execution in Detinue. [This was an action of detinue. Judgment against defendant, and he insists that there was error in the form of the judgment. Judgment re- versed. The action was to recover a bond. Verdict against the defendant as- sessing seven pounds damages if the bond could be found; but if the bond could not be found, the damages were assessed at twenty pounds additional. The judgment rendered was: That the plaintiff recover the seven pounds, and the bond or twenty pounds, and that a distringas [ex- ecution] issue to the sheriff for the bond or twenty pounds. Defendant contended that the judgment should be conditional and not alternative! — that is, the judgment should have been that the plaintiff recover the bond and the seven pounds damages, but if possession of the bond could not be obtained, then that plaintiff — in that event and only in that event — recover the additional twenty pounds as damages. Some point was also made on the form of the distringas ordered.] The court held — That although Waller, the prothonotary of the common pleas, certified that there were divers precedents there in this manner ; and it was said, that in the Book of Entries judg- ment is entered in this manner, and alleged that the judgment be- ing that he shall recover the bond or twenty pounds tantamount, and is to be intended conditional that he shall have the bond, and if he cannot have it, then the twenty pounds ; yet upon considera- tion of many other precedents, and the books which mention that the judgment is and ought to be conditional in itself, and not by intendment, the judgment was erroneous; for by that judgment and awarding of a distringas the sheriff might distrain for the one or the other at his choice, which ought not to be ; but he ought to distrain for the thing itself, and if he cannot have it, then for the twenty pounds : and although the writ of distringas was well made, and in that manner as it was shown to the court ; yet foras- much as the judgment is otherwise, the awarding upon the roll, which is the warrant of the writ, was not good: wherefore rule was given that the judgment should be reversed. See "Detinue," Century Dig. § 47; Decennial and Am. Dig. Key No. Series § 25. Sec. 3 e.] forms of actions. 361 BADGER V. PHINNEY, 15 Mass. 359, 362, 363. 1819. Detinue and Replevin Distinguished. Judgment and Execution in De- tinue. [Action of replevin in which the plaintiff declares on a taking by the defendant on the day the writ issued, and a detention on that day. The defendant showed that no demand had been made upon him prior to the commencement of the action, and insisted that therefore replevin would not lie, but that plaintiff's remedy was detinue. The facts were agreed on and the case submitted to the court for such judgment as was proper. Judgment was rendered against the defendant for reasons set out in the opinion; but only that part of the opinion is Inserted, which treats of the common law actions of replevin and detinue.] Putnam, J. Several objections have been made to the plain- tiff 's recovery. It is said that there has not been any tortious tak- ing by the defendant, and that replevin lies only where there has been such a taking. And it is a general remark in the books that, where there has been a tortious taking, replevin will lie, as well as detinue and trespass. Where the taking was originally without wrong, but the party detains the goods wrongfully, the owner should have some remedy for them specifically, if to be found. The defendant contends that detinue, in such case, is the only remedy. This is certainly not so effectual a remedy, if indeed it be not entirely obsolete. The judg- ment in detinue is, to recover the thing, or the value of it if it cannot be found, with damages for the taking. In replevin, the thing is immediately seized; but in detinue, the possession is not changed until after judgment; and this being conditional, the value, as estimated by the jury, may be but a poor compensation ■ for the thing detained. After a judgment in detinue, a distringas goes to the defendant, ad deliberanda bona; and if he will not de- liver them, the plaintiff shall have the value, as ascertained by the jury. So that it is at the defendant's election to deliver the goods or the value. Replevin is, then, the only certain remedy to recover the specific goods ; and it may be maintained where the taking was lawful, but the detention unlawful. Thus, where one takes cattle damage feasant, if the owner will tender amends before the cattle are im- pounded, he may, at common law, maintain replevin for the un- lawful detention although the taking was lawful. And in such case, the plaintiff shall recover damages for the detention, and there shall be no return. It was truly said by Lord Redesdale that this action, being founded on any unlawful taking, is ' ' calcu- lated to supply the place of detinue and trover." And the re- mark seems to apply as well to an unlawful detention, as to an un- lawful taking. . . . Judgment for the plaintiff. As to the ruling that replevin will lie where the taking is lawful, but the detention, and that only, is unlawful, the principal case is doubted in a note to the case In the edition published In 1864. But whether that rul- ing be correct or not, the statement of the distinction between detinue and replevin is valuable. See "Replevin," Century Dig. §§ 71-73; Decennial and Am. Dig. Key No. Series § 9. 362 FORMS OP ACTIONS. [Gh. 4. Sec. 4. Forms of Action Under the Code Practice. On tlie subject of forms of action, it is said by Clark, C. J., in Hargrove v. Harris, 116 N. C. 418, 419, 420, 21 S. E. 916 (1895) : ' ' Under our constitution art. IV, § 1, there is but one form of action in civil cases. In that, many ancillary remedies may be asked, i. e., Arrest and Bail, Claim and Delivery, Injunction, At- tachment, and Appointment of Receivers. These need not be asked even if the party is entitled to them ("Wilson v. Hughes, 94 N. C. 182), and if they are improperly asked, they are simply de- nied or dismissed, but that does not affect the action itself, which goes on if the plaintiff' is entitled to any other remedy. Deloatch V. Coman, 90 N. C. 186; Morris v. O'Briant, 94 N. C. 72. This is the broad distinction between the present system of procedure and that formerly in force. Under the old system, all these were dis- tinct forms of action, and so much regard Avas paid to the mode in which relief was asked that however meritorious the cause of ac- tion, a mistake in the exact manner of seeking the remedy sent the plaintiff out of court. The common sense of mankind and the in- telligence of the age have caused the old system to be abrogated in the large majority of states and countries of the English speaking race — indeed it was never in force in any other. It was abolished in this state over a quarter of a century since. ' ' In Bitting v. Thaxton, 72 N. C. 541, 548, 549 (1875, Reade, J., says : ' ' The distinction between actions at law and suits in equity, and the forms of all such actions, heretofore existing, are abol- ished, and there shall be in this state hereafter but one form of ac- tion,' etc. C. C. P. § 12. 'All the forms of pleading heretofore ex- isting are abolished,' etc. C. C. P. § 91. A counterclaim must be 'a cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action.' C. C. P. § 101 (1). I£ there is anything settled in our new system it is that there is but one form of action. There are torts and contracts just as there used to be ; but there are not several forms of action as there used to be, and pleadings are not suited for different forms of action, as they used to be ; but all are suited to one form, whether the subject of the action be a tort or a contract. And when the plaintiff files his complaint, setting forth the 'transaction,' whether it be a tort or a contract, the defendant may set up any claim which he has against the plaintiff, connected with the transaction set up in the complaint; and this is called a 'counterclaim.' And when the plaintiff states the 'transaction' in his complaint, he cannot by calling it by one name or another — as tort or contract — cut off the defendant's counterclaim growing out of the same transaction. It is the transaction that is to be investigated, without regard to its form or name." In Lumber Co. v. Wallace, 93 N. C. 22, 25-28 (1885), Merbi- MON, J., says: "Under the code system of procedure as it prevails Sec. 4.] FORMS OF ACTIONS. 363 in this state, equitable relief may be granted in every civil action wherein it appears by proper averments and proofs that the par- ties, or any of them, are entitled to it. The constitution (art. IV, § 1) provides that, 'the distinction between actions at law and suits in equity and the forms of all such actions and suits, shall be abolished ; and there shall be in this state but one form of action, for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action,' etc. This provision does not imply that the distinctions between law and equity are abolished, or that the principles and doctrines of law and equity are so blended as to constitute one embodiment of legal science, without the differences that have heretofore existed between them and been recognized by courts of judicature in their application. Principles of law, principles and doctrines of equity, remain the same they have ever been — the change wrought is in the method of administering them, and in some degree, the extent of the application of them. "Under the common law method of procedure, the principles of law were applied and enforced in courts of law according to meth- ods and forms of action peculiar to them — the principles of equity were applied and administered in courts of equity according to forms and methods of procedure peculiar to them. Such differ- ences were distinctive, well understood and treated as essential. The constitutional provision cited abolishes such distinctions as to actions and their forms, and to a very large extent — not wholly — the method of procedure in directly applying principles both of law and equity. Causes of action distinctively legal in their na- ture, and like causes purely equitable in. their nature, although in respect to the same matter in different aspects of it, need not neces- sarily be united in the same action, though they may be, if the>' come within any of the classifications prescribed in the code. § 267. Gregory v. Hobbs, 93 N. C. 1. But, when a single cause of action has both legal and equitable elements, and also, when the equitable relief sought is merely incidental or ancillary in the ac- tion — in such cases, the principles both of law and equity must be applied in the same action — as in case of application for relief by injunction, or the appointment of a receiver in the course of the action. And this is so as well, when two or more causes of action are united in the same action. "The purpose and effect of the constitutional provision is to abolish the distinctions between actions of law and suits in equity, and the forms of such actions — not the difference in respect to principles — and to establish a single form of action applicable in all cases, whether the cause of action be legal, or equitable, or both. The end sought to be attained is to obviate circuity and multi- plicity of actions, variety of forms of action and complication in- cident thereto, and to facilitate the application of the principles of law and equity where they apply to a greater or less extent to the same causes of action. The code of civil procedure prescribes the method of applying both law and equity in one form of ac- tion. By it is established a system of pleading, the purpose of 364 FORMS OF ACTIONS. [Cll-. 4. -which is to effectuate the intention of the constitutional provision under consideration. This method of procedure is, in some re- spects, imperfect, particularly in respect to the trial of issues of fact arising in cases purely equitable, and that sometimes arise in cases involving both legal and equitable elements. Because of this imperfection, the courts oftentimes find it difficult to grant the full measure of equitable relief as contemplated by the doctrines of equity. The trial of issues of fact by a jury is generally ill- suited to the settlement of the facts in equity cases. But in some other respects, it facilitates and enlarges the scope of equitable re- lief that may be granted. This is so especially as to relief by in- junction and the appointment of receivers. The provisions of the code, §§ 338, 379, in express terms invest the court with very large and comprehensive powers to protect the rights and prevent the perpetration, or the continuance, of wrong in respect to the subject matter of the action, and to take charge of and protect the property in controversy both before and after judgment, by in- jimctions and through receivers, pending the litigation ; they facil- itate and enlarge the authority of the courts in the exercise of these remedial agencies, and do not in any degree abridge the exer- cise of like general powers that appertain to courts of equity to grant the relief specified, or to grant perpetual injunctions in proper cases, and the like relief. " It is not, however, to be understood, that the court will admin- ister both law and equity in the same action upon the mere sug- gestion of the parties, or some of them. Of course, the cause of ac- tion, or the defense thereto, whatever may be its nature — whether legal or equitable or both — must be set forth in the action as re- quired by the method of pleading established by the code, and in such intelligent way as to enable the court to see what principles apply and how they must be administered. The pleadings should develop the nature of the relief sought. Such relief may be granted in the same action in respect to the same cause of action, not only to the plaintiff, but as well to the defendant, either tem- porarily in the course of the action, or by the final judgment, ac- cordingly as it may appear that he is entitled; and this is es- pecially so, when the defendant pleads a counterclaim that he may be entitled to plead. Indeed, a counterclaim is generally, practi- cally and in effect, a counter-action brought by the defendant against the plaintiff. Such being the scope and purpose of the method of civil procedure in this state, we think there can be no doubt that the defendants are entitled to equitable relief. ' ' In Staton v. Webb, 137 N. C. 35, 39, 40, 49 S. E. 55, 57, Doug- las, J., says: "It is evident . . . that the code of civil proce- dure was neither a modification nor a simplification of any of the common-law modes of procedure. It practically abolished all the common-law forms of action, and adopted the old equity practice, with some slight modifications, the principal one being that in the code practice the summons precedes the complaint; while in equity the subpoena follows the bill. Wilson v. Moore, 72' N. C. 558. A brief glance at the methods of procedure in actions at law Sec. 4.] FORMS OP ACTIONS. 365 before the adoption of the code of civil procedure will show how complete is the change. In this state the courts followed the prac- tice of the court of King's Bench in England. Much space and learning were expended upon the nature and requisites of the dif- ferent pleadings, but in actual practice the method was of the sim- plest kind. The action was begun by an "original writ" com- manding the sheriff to "take the body of C. D. (if he be found in your county) and him safely keep so that you have him before the justices of our Court of Pleas and Quarter Sessions to be held . then and there to answer A. B. of a plea of trespass on the ease to his damage . . . dollars.' If the action lay in debt or covenant or any other form of action, the only change made was to insert in lieu of the words 'trespass on the case' the words 'that he render unto him the sum of . . . dollars, which he owes to and unjustly detains from him ; ' or a ' breach of covenant,' as the case might Idc. Eaton's Forms, 44. Under this writ the sheriff took the defendant into custody unless belonging to some exempted class, such as a woman or an administrator, and held him to bail, or himself became special bail. The plaintiff was supposed to file a declaration which in fact was rarely if ever done, the mere indorsement of the nature of the action on the back of the writ being deemed a sufficient compliance with the rule in the absence of a specific demand. The defendant was also expected to plead, which was usually done by his counsel merely marking upon the docket the nature of his pleas in contracted form. "Whatever it may have been in theorj', the usual entry was about as follows: 'Genl. Issue, Payt., & set-off, Stat. Lim. with leave.' The last two words mean leave to plead any other defense that may chance to occur to the pleader, such as nil debit, accord and satisfaction, non est factum, or the like. In ejectment, a form of trespass wherein the general issue was 'not guilty,' the proce- dure was more complicated, but even in that action Mr. Eaton feels called on to say : ' The practice which prevails in North Caro- lina of trying actions of ejectment with no declaration on file but that against the casual ejector is very irregular.' The force of this remark is apparent when we recall that the casual ejector had no actual existence, being purely a fictitious personage, the airy phantom of judicial imagination. In the old system the principal difficulties lay in deciding upon the proper form of action and the danger of encountering, during the trial, some equitable right that could not be adjusted in that court. The fact that the courts of law and equity were held by the same judge at the same place and during the same week, did not prevent them from being sepa- rate and di.stinct courts, with subjects of jurisdiction and methods of procedure entirely different. It was to remedy these evils that the new system was adopted. "Whether it comes up to the full measure of simplicity claimed for it by its most enthusiastic ad- vocates, we are not entirely prepared to say. ' ' See "Action," Century Dig. § 257; Decennial and Am. Dig. Key No. Series § 32. 366 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. CHAPTER V. INJURIES TO PERSONAL SECURITY, TO PERSONAL LIBERTY, AND TO PRIVILEGES. "Sec. 1. Remedies for the Death op a Person. Appeals op Death. Lord Campbell's Act. LOUISVILLE & ST. L. R. R. v. CLARKE, 152 U. S. 230, 14 Sup. Ct. 579. 1894. Appeals of Death. Weregild. [Clarke, as executor of a person alleged to have been killed by the neg- ligence of the Louisville, etc., R. R. Co., sued the railroad company for damages. The railroad company demurred. Demurrer overruled, and answer filed. Verdict and judgment against the railroad company, and the company carried the case to the supreme court by writ of error. Affirmed. The action was brought in the United States circuit court for the dis- trict of Indiana to recover damages under the statute of Indiana. It ap- peared from the complaint that the injury to the deceased occurred on November 25, 1886, but the death was not until February 23, 1888. The ground of demurrer was, that no cause of action was alleged, because the death of the injured person did not occur within a year and a day after the injury. The Indiana statute provided for the recovery of damages for the death ■of a person, it such action were commenced within two years from the death of such person. In this case the action was commenced within two years from the death; but the railroad company contended that no cause of action existed at all because of the common-law rule that where the death of a person occurs more than a year and a day after an injury to such person, the injury shall not be considered the cause of the death. Only that portion of the opinion which discusses the common law gov- erning the remedy for wrongful acts causing death, appeals of death, etc., is here inserted.] "At common law there were three occasions upon which the courts inquired in respect of the killing of a human being : First. Indictments which were public prosecutions — prosecutions brought in the name and behalf of the king. Second. Appeals of death, which were proceedings brought not by the king nor in his name, but in the name and for the benefit of private individuals. Third. Inquisitions against deodands. " (From brief of counsel, p. 231.) Me. Justice Harlan. . In cases of murder the rule at common law undoubtedly was that no person should be adjudged, "by any act whatever, to kill another, who does not die by it within Sec. 1.] PERSONAL SECURITY, LIBERTY, ETC. 367 a year and a day thereafter, in computation whereof the whole day on which the hurt was done shall be reckoned first. ' ' 1 Hawk. P. C. c. 13 ; 2 Hawk. P. C. c. 23 § 88 ; 4 Bl. Comm. 197, 306. The reason assigned for that rule was that, if the person alleged to have been murdered "die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke or poison, etc., or a natural death ; and, in case of life, a rule of law ought to be certain." 3 Inst. 53. And such is the rule in this country in prosecutions for murder, except in jurisdictions where it may be otherwise prescribed by statute. Whart. Am. Cr. Law, § 1073; ^tate V. Orrell, 1 Dev. 139. An appeal, when spoken of as a criminal prosecution, denoted, according to Blackstone, an accusation by a private subject against another for some heinous crime, — a "private process for the pun- ishment of public crimes," having its origin in a custom, derived from the ancient Germans, of allowing a pecuniary satisfaction, called a "weregild," to the party injured or his relations, "to ex- piate enormous offenses." 4 Bl. Comm. 312, 313. Bacon defines it to be a "vindictive" action, — "the party's private action, seeking revenge for the injury done him, and at the same time prosecuting for the crown in respect of the offense against the public. ' ' Bac. Abr. tit. "Appeal." These appeals could be brought "previous to an indictment, and, if the appellee be acquitted thereon, he could not be afterwards indicted for the same offense." 4 Bl. Comm. 315; Com. Dig. tit. "Appeal," G, 11, 16. While, during the continuance of the custom referred to, a process was given for recovering the weregild by the party to whom it was due, "it seems that when these offenses, by degrees, grew no longer redeem- able, the private process was still continued, in order to insure the infliction of punishment on the offender, though the party was allowed no pecuniary compensation for the offense." Book 4, p. 314. By statute of 59 Geo. Ill, c. 46, appeals of murder, trea- son, felony, and other offenses were abolished. During the time when appeals of death were allowed, at com- mon law, the rule established by the statute of Gloucester (6 Edw. I. c. 9) was that "the appeal must be sued out within a year and a day after the completion of the felony by the death of the partj^" 4 Bl. Comm. 315. This, the author said, seemed to be only declaratory of the common law. And Hawkins says: "It seems clear that the appeal of death must set forth the day when the hurt was given, but also the day when the party died of it, as it appears from all precedents of this kind, both in Coke and Raslat, and also from the manifest reason of the thing, that it may appear that the party died within a year and a daj^ after the stroke, in which case, only, the law intends the death was oc- casioned by it." 2 Hawk. P. C. c. 23, § 88. Bacon, referring to the statute of Gloucester, says that, by that statute, "an appeal shall not be abated for default of fresh suit if the party sue within the year and day after the deed done, the computation whereof, as the law is now. settled, shall be made, not from the dav when the 368 PERSONAL SECURITY, LIBERTY, ETC. [Ck. 5. wound is given, but from the day when the party died ; also, the year and the day shall be computed from the beginning of the day, and not from the precise time when the death happened, because regularly no fraction shall be made of a day." Bac. Abr. tit. "Ap- peals," D. And Comyn: "By the statute of Gloucester, 6 Edw. I. e. 9, an appeal shall not abate by want of fresh suit, if brought in a year tind a day after the fact done ; which statute is, by con- struction, restrained to an appeal for the death of a man. And, therefore, an appeal upon the death of a man may be within the year and day, though there be not any fresh suit ; within a year and a day after the death, though the blow was given before." 2 Inst. 320, tit. "Appeals," D. The rule of a year and a day was also applied at common law to inquisitions of deodands, brought to forfeit to the king, "to be applied to pious uses and distributed in alms by his high al- moner," — personal chattels that were the immediate occasion of the death of any reasonable creature. 1 Bl. Comm. 300. The rule in those cases was that the law does not look upon such a wound as'. the cause of a man's death, "after which he lives so long." 1 Hawk. P. C. c. 8, S 7. We have made this full reference to prosecutions for murder, appeals of death, and inquisitions against deodands because of the earnest contention of counsel that the rule applied at common law in such cases should control the construction of the Indiana stat- ute. In our judgment, the rule of a year and a day is inapplicable to the case before us. In prosecutions for murder the rule was one simply of criminal evidence. Appeals of death and inquisi- tions against deodands, although having some of the features of civil proceedings, were, in material respects, criminal in their na- ture. Besides, as we have seen, the statute of 6 Edw. I c. 9, was construed as giving a year and a day from the death of the party killed, not from the time the w^ound was inflicted ; and we do not understand that any different construction was placed upon the statute of 3 Hen. VII. c. 1, to which counsel referred. But, be that as it may, in prosecutions for murder and appeals of death, the principal object was the punishment of public of- fenses. In cases of murder and appeals of death, human life was involved, while in inquisitions against deodands it was sought to forfeit property that had caused the death of some one. In such cases the rule of a year and a day might well have been applied. [The court holds that the rule of a year and a day has no application to actions under statutes like that of Indiana, "which are purely civil proceedings that involve no element of punishment, but only provide compensation to certain relatives of the decedent who have heen deprived of his assistance and aid."] Appeals of murder were never regarded as contrary to Magna Charta; hut were considered "a noble remedy and a badge of the rights and liber- ties of Englishmen." Persons acquitted of murder on indictment were often tried again on appeals of murder, and convicted and executed. The right of appeal existed in Pennsylvania and Maryland. No appeal Sec. 1.] PERSONAL SECURITY, LIBERTY, ETC. 369 was ever brought in Pennsylvania, but in 1765 a negro was hung under such proceedings in Maryland. An appeal of murder was brought in England in 1817, but was defeated because the prosecutor — called the appellant — declined to accept "the wager of battel." Hurtado v. The People of Cal., 110 U. S. 516, 526. See 9 L. R. A. (N, S.) 1193, 19 lb. 633, and notes, for doctrine of principal case. See also 4 Blk. *312-317; 1 Bao. Abr. 291-299. See "Death," Century Dig. § 21; Decennial and Am. Dig. Key No. Series § 17. GROSSB V. DEL., & W. R. R. CO., 50 N. J. L. 317, 13 Atl. 233. 1888. Actio Personalis Moritur cum Persona. Lord Campbell's Act of 1846. [Action by plaintiff for damages caused by the death of his wife as the consequence of defendant's alleged negligence. Demurrer by defendant. Demurrer sustained. Judgment against the plaintiff, and he appealed. Affirmed. The facts appear in the opening of the opinion.] Magie, J. The declaration demurred to charged the defendant company with the immediate killing of plaintiff's wife by the negligence of its employees. It sought to recover damages for the loss of her society and assistance in plaintiff 's domestic affairs, and for money laid out by him in burying her. The case thus pre- sented does not come with the provisions of the statute of March 3, 1848 (Revision, 294), or any other statute. It is of novel im- pression in this state, and the demurrer raises the question whether, apart from the authority conferred by statute, an action will lie to recover damages for the killing of a human being. In the very ingenious argument submitted in behalf of the plaintiff in error, it seems to be admitted that the current of English authority indi- cates that such an action could not be brought at common law. In 1607 it was held that a husband could not recover for the injury he sustained by the death of his wife occasioned by the battery of defendant. Higgins v. Butcher, Yel. 89. In deciding the case, Tanfibld, J., expressed this opinion: "If a man beat the servant of S. so that he dies of that battery, the master shall not have an action for the battery and loss of service, because, the servant djang of the extremity of the battery, it is now become an offense to the crown, being converted into a felony, and that drowns the particular offense and private wrong offered to the master before and his action is thereby lost." No trace of a case involving the right tc recover for the loss of services occasioned by the killing of a wife or servant can be found thereafter until 1808. Then, in an action tried before Lord Ellenborough, a husband sought to recover damages for injuries inflicted on his wife by the negligent overturning of a stage-coach, and which eventually produced her death. That eminent judge directed the jury to limit the damages to those the husband had suffered during the life of the wife, giv- ing as the reason, that "in a civil court the death of a human being cannot be complained of as an injury. ' ' Baker v. Bolton, 1 Camp. 493. No further opportunity to adjudicate upon the Remedies — 24. 370 pebsonjUj security, liberty, etc. [Ch. 5. question seems to have been afforded until 1872, when an action by a father, for loss of the services of a daughter and servant, oc- casioned by her death caused by the negligence of a servant of the defendant, came before the court of exchequer on demurrer to pleas, one of which set up that the death of the daughter was the immediate and instantaneous result of -the negligence. The valid- ity of that plea was sustained as affording a complete answer to the father's claim. Osbom v. Gillett, L. E. 8 Exch. 88. This course of decision cannot, perhaps, be said to have been promulgated without some protest. Thus the learned reporter of Baker v. Bol- ton appends to the report this query: "If the wife be killed on the spot, is this to be considered damnum absque injiiria?" In Osborn v. Lillitt, the result was reached by the concurrence of Kelly, C. B., and Pigott, B., against the vigorous dissent of the then Baron Bramwell. Notwithstanding such evidences of some doubt, the fact that the common law has been construed in Eng- land from the earliest times to reject an action for loss of services occasioned by the death of the servant appears, not only from these adjudged cases, but also from the absence of precedents for such actions (the opportunity for which must have frequently oc- curred), and of any doctrine of text- writers or commentators to the contrary. There also appears a parliamentary declaration of what was the common-law rule, which seems to me must be de- cisive. It occurs in a recital of the preamble of Lord Campbell's act of 9 & 10 Vict. c. 93 (1846), which declares that "no action is now maintainable against a person who by his wrongful acts may have caused the death of another person." There is nothing to justify any restriction of this general expression of what the common law was, because the act then proceeds to give an action in favor, among others, of a husband for the death of his wife, and of a parent for the death of his child, although such death had been caused under circumstances which would amount in law to felony. Counsel, therefore, properly admitting this rule to have existed at common law, strenuously contend that it has never been and ought not to be adopted here. His argument is that this doctrine depended upon the notion that every homicide was felony, and oc- casioned the forfeiture of the felon 's goods ; and since his property was to go to the crown, and his body to the gallows, an action for a private injury was useless and absurd ; but that in this country, where the law of forfeiture has never been adopted, the rule is inapplicable under the maxim, c'essante ratione, cessat ipsa lex. But it is obvious that the reason counsel assigns for the rule is not that afforded by the cases. In Higgins v. Butcher it is said, not that the private action is useless, but that the private wrong is merged or drowned in the public wrong. In Baker v. Bolton the case was not necessarily one of felony, and Lord EUenborough's ruling opposed a barrier to any civil action for a death, however caused. In Osbom v. Gillett there was nothing to show the killing to have been felonious, and all the judges treat the case as not Sec. 1.] peesonaij security, liberty, etc. 371 involving a felony. So the recital of Lord Campbell's act declared that no action lay against any person who by his wrongful (not necessarily felonious) acts had caused the death of another. The rule having been applied to cases not felonious, we cannot accept the reason attributed by counsel as the ground of the rule. Many reasons have been suggested for the rule. It has been said that it is inconsistent with the policy of the law 'to permit the value of human life to become the subject of judicial computation (Worley V. Railroad Co., 1 Handy, 481) ; that upon the principle which would allow an action to those who have been deprived of the services of deceased, an action would lie in favor of those entitled to the protection or interested in the life of deceased, as dependents or even creditors (Insurance Co. v. Railroad Co., 25 Conn. 265) ; that there is a national and universal repugnance among enlight- ened nations to setting a price on human life (Hyatt v. Adams, 16 Mich. 180) ; and, which is perhaps as satisfactory as any, that the right to such services as are under discussion ceases at the in- stant of death, so that the husband or master is deprived of no service to which he can be said to have a right. Wood, Mast. & Serv. § 233; Shear. & R. Neg. § 290. What may have been the real reason for the establishment of this rule of the common law we may not be able to discover ; but, if so, I do not apprehend we can apply the maxim, cessante ratione. In that case the rule must be held to be one (to use the apt illustration of Mr. Bishop) originally created for some legal reason which in the mutation of things has crumbled away, leaving the rule so erystalized as to be immovable except by legislative power. 1 Bish. Crim. Law, § 337. It is in this sense I think that the rule has been accepted as law in this country. While several of our text-books criticise it, all seem to admit it to have been a rule of the common law generally adopted here. Reeve, Dom. Rel. 377; Schouler, Dom. Rel. 110; Shear. & R. Neg. § 290 ; Wood, Mast. & Serv. § 223 ; 1 Thomp. Neg. note, 1272 ; Hil. Torts, 87. There are two early cases in this coun- try in which the common-law rule was not applied. The first was Smith V. Weaver, Tayl. (N. C.) 42, in which an action for dam- ages for the killing of a slave was allowed. The report is obscure, and it is obvious that some considerations growing out of the pe- culiar relations of master and slave may have afforded ground for the decision. The other ease is that of Ford v. Monroe, 20 Wend. 210, where a father was permitted to recover for the loss of the services of his son killed by the defendant. But the point was evidently not raised by counsel, and passed sub silentio. The case, moreover, as well as the later ease of Lynch v. Davis, 12 How. Pr. 323, was clearly overruled by the court of appeals in the ease be- low cited. I have not found any other cases giving the least countenance to the contention of plaintiff in error until one of recent date hereafter referred to. On the contrary, we have the common-law rule forbidding an action for damages occasioned by the death of a human being, except in cases where a statute gives a remedy by action, acknowledged in Massachusetts (Skinner v. 372 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. Railroad Corp., 1 Cush. 475) ; in Kentucky (Eden v. Railroad Co., 14 B. Mon. 165) ; in New York (Green v. Railroad Co., 28 Barb. 9, 41* N. Y. 294) ; in Michigan (Hyatt v. Adams, 16 Mich. 180) ; in Indiana (Long v. Morrison, 14 Ind. 595; Railroad Co. V. Keeley, 23 Ind. 133) ; in Connecticut (Insurance Co. v. Rail- road Co., 25 Conn. 272) ; in the supreme court of the United States (Insurance Co. v. Brame, 95 U. S. 754) ; in California (Kramer V. Railroad Co., 25 Cal. 434) ; in Maine (Nickerson v. Harriman, 38 Me. 277) ; in Pennsylvania (Railroad Co. v. Adams, 55 Pa. St. 499) ; and in Georgia (Railroad Co. v. Lacey, 49 Ga. 106). The case of recent date above referred to is Sullivan v. Railroad Co., 3 Dill. 334, Fed. Cas. No. 13,599. The action was by a parent for the loss of the services of his son, claimed to have been killed by the negligence of the defendant. It was admitted that there was no existing statute upon which the action could rest. After a re- view of the English cases, Dillon, J., reached the conclusion that the plaintiff might recover. The decision indicates the opinion of that able judge to be that the common law, as administered here, does not prohibit such actions. But I have found no other federal court following the case, and the supreme court of the United States in Insurance Co. v. Brame, supra, declares the proposition that by the common law no civil action lay for an injury which re- sults in death to be one not open to question. Lord Campbell's Act, as we have seen, gave an action in favor of a husband and parent, as well as of a wife and child, for an injury occasioned by death. In the earliest period the common law had given to the widow and to the heir an action against the slayer of the husband and ancestor. Such actions, known as ap- peals of death, had fallen into disuse, and after the celebrated case of Ashford v. Thornton, 1 Barn. & Aid. 405, which exhibited to comparatively modern times two relics of ancient law, viz., plead- ings ore tenus and wager of battel, were abolished by statute. As I have interpreted the common law, thenceforth an injury oc- casioned by death was absolutely without redress. Parliament thereupon, by Lord Campbell's Act, provided for redress for such injuries, etc. It gave an action in favor of the widow and of the children of the deceased. It also gave an action in favor of the husband and the parent. When the legislature of New Jersey passed the "Act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default," approved March 3, 1848, the lines of Lord Campbell's Act were not followed. An action was thereby given in favor of the widow, but not in favor of the husband; and the action was not limited to the children, but extended for the benefit of the next of kin. The omission of the husband does not, however, in my judgment, indicate a legislative declaration that he already had a right of action. As we have seen, no recognition of any such right has been discovered. The omission may rather be assumed to indi- cate a legislative intent to provide redress for those who, in gen- eral, had been dependent upon the deceased, and who for that rea- Sec. 1.] PERSONAL SECUBITY, LIBERTY, ETC. 373 son might be presumed to be peculiarly injured by his death. The conclusion I have reached is that the rule of the common law was that no action would lie to recover damages for the killing of a human being ; that the rule has become so solidified that whatever its original reason was, and however such reason may have ceased to exist, it cannot be judicially disregarded or annulled, but, if injurious, its further modification must be sought from legislative action. This result excludes the whole action disclosed in the dec- laration. The demurrer was therefore properly sustained, and the judgment below should be affirmed. If the killing be justifiabla — in self-defense — no recovery can be had. Suell V. Derricott (Ala.), 49 So. 895, 23 L. R. A. (N. S.) 996, and note. That the law of the principal case is contained in the maxim "actio per- sonalis moritur cum persona," see Broom's Legal Maxims, 681-691. For a very elaborate note on the subject discussed in the principal case, see 41 L. R. A. 807-817; see also 11 L. R. A. (N. S.) 1157; 8 Ihid. 384. That a father cannot recover for the negligent, etc., killing of his minor child, see Killian v. R. R., 128 N. C. 261, 38 S. E. 873, where it is said: "Lord BUenborough tersely stated the doctrine of the common law to be: 'In a civil suit, the death of a human being cannot be complained of as an injury.' Where the injury subsequently resulted in death, the action abated — actio personalis moritur cum persona;" but under the statute of North Carolina, Rev. §§ 59, 60, the administrator of a person whose death resulted from the wrongful act of another, may recover damages even though the person killed was only five months old. Russell v. R. R., 126 N. C. 961, 36 S. E. 191. The North Carolina statute corresponding with Lord Campbell's Act, though differing therefrom in several material particulars, is the act of 1868-69, now Rev. §§ 59, 60. The most excellent notes to these sections in Pell's Revisal enable the student to find every important point decided in North Carolina upon the subject embraced in the principal case, or arising under these sections — and thus can be accomplished within a few minutes as much as would consume many hours of diligent search, but for the pains-taking labor of that author in analyzing, condensing, and conveniently arranging, the decisions. Statutes of like character with Lord Campbell's Act exist, perhaps, in all the states, though the provisions of such statutes differ in important particulars. For rulings upon such statutes, see 2 L. R. A. (N. S.) 640, and note (action for the death of, or for the benefit of, illegitimates); 11 lb. 623, and note (what damages recoverable by collateral kin); 1 lb. 1161, and note (what damages recoverable by parents) ; 3 lb. 473, and note (for death of an alien); 4 lb,. 814, and note (what law governs distribu- tion of recovery — that of the domicile of the decedent or that of the state in which the cause of action arose?) ; 9 lb. 1078, and note (when injury suffered in one state but death occurs in another); 11 lb. 1157, and note (does the action abate upon the death of the wrong-doer?) ; 2 lb. 905, and note (rules as to recovery upon circumstantial evidence); 8 lb. 384, and note (several distinct actions for the same wrongful act resulting in death). See "Death," Century Dig. §§ 35-46; Decennial and Am. Key No. Series | 31. 374 PERSONAL SECUEITY, LIBERTY, ETC. [Ch. Sec. 2. Preventive Remedies. STATE V. LYON, 93 N. C. 575. 1885. Peace Warrant. [Proceedings on a Peace Warrant by which Lyon was required to give sureties to keep the peace, etc. The proceedings were in the court of a justice of the peace, from whose judgment, requiring him to give bond, etc., Lyon appealed to the superior court. In the superior court the mat- ter was heard de novo, and the decision was in favor of Lyon. Judgment for costs was rendered against those who instituted the proceedings — their names do not appear anywhere in the case as reported — and they appealed to the supreme court. Reversed. The opinion explains the na- ture of a Peace Warrant as a remedy.] Meekimon, J. The counsel for the present defendant insisted, on the argument before us, that no appeal lay in favor of the de fendant in the peace warrant, from the order of the justice of the peace requiring him to enter into a recognizance to the state, con- ditioned that he vt^ould keep the peace and be of good behavior, etc. We are of that opinion, and think that the superior court should have dismissed the supposed appeal. A "peace warrant" is denominated, in the code, a criminal ac- tion, but it is no part of its purpose to charge a party with a crim- inal offense, try him for the same, and, if found guilty, impose a punishment upon him. It is a proceeding in the administration of preventive .justice, the purpose of which is to oblige a person, who, there is probable ground to believe, will commit some criminal offense,. or do some unlawful act, to stipulate with and give satis- factory assurance to the public, that such apprehended offense will not happen; that he will keep the peace and be of good be- havior generally, and in such cases, specially toward a person, or persons named. The party recognized is only required to do what a good citizen ought to do without compulsion. Sir "William Blackstone says: "This preventive justice consists in obliging a person whom there is probable ground to suspect of future mis- behavior, to stipulate with, and give full assurance to the public, that such offense as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good be- havior. This requisition of securities has been several times men- tioned before, as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanors ; but these must also be understood rather as a caution against the repetition of the of- fense than any immediate pain or punishment." 4 Blk. 252. The nature of the purpose to be so subserved, suggests and re- quires that the action of the ofBcer requiring such security of a party rnust be conclusive, and not subject to the right of appeal, ordinarily. An appeal, in the absence of any statutory regulation to the contrary, would vacate the order requiring security to keep the peace, and the persons, from whom danger is apprehended, might, without such restraint, commit the offense pending the ap- Sec. 2.] PERSONAL SECUBITY, LIBERTY, ETC. 375 peal. Hence, Justice Dick said in State v. Locust, 63 N. C. 57-1, that such proceedings must be summary and conclusive to render them effectual for the protection of the complainant, and to se- cure the public peace, and generally there is no appeal from the action of the justice of the peace in the matter. This view is not in conflict 'wath the provision of the constitution (Art. 18, see. 27), and the statute, the Code, sec. 900, allowing appeals from justices of the peace in criminal cases. These provisions have reference to criminal cases wherein the magistrate gives judgment against a party charged with a criminal offense, and imposes on him a pun- ishment by fine or imprisonment. This is apparent from the nature of the matter, and as well from the language employed in the Code, sees. 900, 901, 903. They refer to the conviction and sentence of the defendant. It is asked : " Is there no remedy, if the action of the justice of the peace is manifestly erroneous, or if he shall prostitute his powers ? " It is not to be presumed that he will be in error, or prostitute his powers; but if he should, the law does not provide that such wrong shall be corrected by appeal, and for the reasons already stated. It may be that the action of the justice of the peace in such a case as that suggested, might be taken to the su- perior court by certiorari ; or if the party complaining should be in close custody, he might obtain relief by habeas corpus, but we are not called upon to decide any question in this respect. There is error.- The judgment of the superior court reversing the order of the justice of the peace, must be reversed, and the appeal to that court dismissed. See Rev. § 3173, which now provides for an appeal. This section was adopted in 1901. The principal case was approved in State v. Wallter, 94 N. C. 857, and State v. Gregory, 118 N. C. 1199, 24 S. E. 712. See "Breach of the Peace," Century Dig. §§ 7, 12, 15; Decennial and Am. Dig Key No. Series §§ 16, 21; "Criminal Law," Century Dig. § 567; Decennial and Am. Dig. Key No. Series § 260. EX PARTE WARPIELD, 40 Texas Cr. 413, 50 S. W. 933, 76 Am. St. R. 724. 1899. Injunction. [Original application tor writ of habeas corpus. Applicant remanded to prison. W. R. Morris sued Warfield for damages for alleged alienation of the affections of Morris' wife. In the action he also prayed for an injunction against Warfleld's visiting or associating with Mrs. Morris, and that he be restrained from writing or speaking to her. A writ of injunction was issued as prayed for. Warfield violated this order and was, in conse- quence, fined and imprisoned for contempt. Thereupon he sued out this writ of habeas corpus and, among other things, contended that the writ of injunction was void because the court had no power or authority to enjoin him from speaking to, or talking with, Mrs. Morris; "that the exercise of said power was beyond the jurisdiction of a court of equity and was not merely irregular, hut void, and imposed upon him no duty to obey the same." 376 PERSONAL SECURITY, LIBERTY, ETC. [CJl. 5. After passing on the questions of jurisdiction of the supreme court in the matter of habeas corpus, and the power of the lower court to enforce obedience to its orders, the opinion proceeds:] Henderson, J. . . . The power of courts of equity to grant writs of injunction has a wide range of subjects. Courts and text writers have sometimes attempted to enumerate them, but we be- lieve that the matter is of such a character as to escape designa- tion; and, where the attempt has been made, the text-books say that it would indeed be difficult to enumerate all, for, in the end- less variety of cases in which a plaintiff is entitled to equitable relief, if that relief consists in restraining the commission or con- tinuance of some act of the defendant, a court administers it by means of the writ of injunction. See 1 Spell. Bxtr. Relief, § 5. Indeed, the interposition of courts of equity by restraining orders is a matter of growth, and keeps pace with advancing civilization, and courts are continually finding new subjects for the interposi- tion of equitable relief by writs of injunction. Formerly, it seemed to be the rule that courts would only interfere where some property right or interest was involved ; but now it seems the writ will be applied to an innumerable variety of eases, in which really no property right is involved. While in some of the cases the courts appear to adhere to the old rule, yet when we look at the case it is difficult to see any question of property right, but a vain endeavor on the part of the court to adhere to the old doctrine, while it reaches out for the protection of some personal right. In the note to Chappell v. Stewart, reported in 37 Lawy. Rep. Ann. 783 (S. C. 82 Md. 323, 33 Atl. 542), the learned annotator attempts to classify the cases, where courts have interfered for the protec- tion of merely personal rights, as rights relating to physical life, and rights relating to the intellectual, moral and emotional life, and we refer to the cases embraced in the note to said case. We quote from the conclusion of the annotator, as follows : ' ' The va- riety of cases above referred to, in which personal rights are really protected by courts of equity, shows that, while it is a commonly accepted theory that their jurisdiction must rest upon rights of property, there are, at least, many exceptions to the rule, among them, cases of contract, trust, or breach of confidence, relating to personal rights, cases respecting the education and custody of children, and cases relating to privacy and reputation, such as those restraining the publication or exhibition of photographs or other representations of persons, and the publication of private letters. In addition to this are the cases relating to the security of the person and the protection of health and physical comfort. While, in many of these cases, the jurisdiction is nominally based on an alleged property right, it is plain that the observance of the rule that equity will be limited to rights of property is little more than nominal. In all this class of cases equity does concern itself about personal rights as the real subject of consideration. Eng- ird relieved its courts of equity from any necessity for searching for rights of property on which to base its jurisdiction by Act Sec. 2.] PERSONAL SECURITY, LIBERTY, ETC. 377 1873, § 25, subd. 8, which gave power to grant an injunction in all cases in which it shall appear to the court to be just that such order should be made. Under such a statute, the English courts are entirely free to grant injunctions to protect personal rights, including the right of reputation, and injunctions against libels are in fact granted." Under this increased exercise of power, courts of equity grant injunctions to restrain one set of employees or servants of a railroad company from interfering with or molest- ing another set of employees, especially where the road is in the hands of a receiver. See In re Wabash R. Co. (C. C), 24 Fed. 217; U. S. V. Debs (C. C), 64 Fed. 724. And so one who has learned the business secrets of another by virtue of his employ- ment will be restrained from interfering with the business of such former employer by writing letters, soliciting trade, etc. See Loven v. People (111. Sup.), 42 N. E. 82. And equity will inter- fere to restrain a husband from interfering with a wife or children after an agreed separation. Sanders v. Rodway, 16 Beav. 207; Swift v. Swift, 34 Beav. 266 ; Hamilton v. Hector, L. R. 6 Ch. App. 701 ; Aymar v. Roff, 3 Johns. Ch. 48, 49. While equity will interfere in matters of contract involving per- sonal services, a distinction is taken between affirmative and neg- ative stipulations. Equity will not compel a servant to perform an act, but will restrain that servant from performing a negative stipulation, or some act negative in its character, involved or im- plied in the affirmative stipulation. See 1 Spell. Bxtr. Relief, § 11 ; 2 High, Inj. §§ 1164, 1165. Under this authority, it has been held that where an opera singer or actor has contracted to sing or play for plaintiff at his theater, and nowhere else, without his per- mission, an injunction will be granted to restrain the party from singing elsewhere ; the court thus preventing a breach of the neg- ative covenant, although it cannot specifically enforce the affirm- ative agreement by compelling defendant to sing or act for plain- tiff. See Lumley v. Wagner, 1 De Gex, M. & G. 604; Daly v. Smith, 38 N. T. Super. Ct. 158. And see other authorities cited in 2 High, Inj. p. 902, note 2. From these cases will be seen some- what of the growth and application of the modern doctrine of equity in granti-ng writs of injunction. We might cite a number of other cases illustrative of this view, but do not deem it neces- sary. If we refer to the modem cases (especially under liberal statutes on the subject of granting writs of injunction), the old doctrine of the freedom of speech and of the press, and that courts will only punish after an act which is violative of one or the other, appears to be overthrown in England, as we have seen, by statute. And see Kitcat v. Sharp, 52 Law. J. Ch. 134. Our statute, as we shall hereafter see, is as liberal as the English statute on the same subject. So, the cases of People v. Durrant, 116 Cal. 179, 48 Pac. 75, and Association v. Boogher (Mo.), 4 Cent. Law J. 40, would seem to have no application. [The opinion then discusses "the question as to whether or not . . . the' action of the court here complained of was absolutely 378 PERSONAL SECURITY, LIBERTY, ETC. [Cli. 5. void;" and, after reviewing a number of authorities, proceeds:! We deduce from the foregoing authorities and others that might be cited, these propositions: First. That courts of equity can au- thorize the issuance of writs of injunction in all cases of equitable cognizance, where the party shows himself entitled to the issuance of the writ under the well-known rules of equity. As ancillary to this, that the growth of the principles of equity in this regard have been greatly enlarged, so that it may be said that where a court of equity has jurisdiction of the case, and a party shows that he is liable to suffer injury by some act threatened or that maj^ be done pending the litigation, Avhether this has regard to property in issue or to some personal right dependent upon some personal act or conduct, the coiirt will grant the writ. In such case, it cannot be said that the court lacks the power, although, in doubtful cases, it may refrain from the exercise of such power. Second. That in actions purely legal, of which the law courts have exclusive cognizance, there is no authority to issue a writ of injunction. Third. In a case (and there have been many such) where it is doubtful whether the action is one at law or of equitable cog- nizance, as a general rule, where the case is brought in an equitj' court, the chancellor has the same power to issue the writ as if there was no question of the jurisdiction, and as long as the writ continues it must be obeyed. So far we have spoken of the matter as if the jurisdictions were entirely separate, as is the ease in England and in most of our states. But in Texas we have a blended system of law and equity, there being but one jurisdiction for both, and, by a stronger rea- son, the writ of injunction will be authorized in a doubtful case. Now, recurring to the subject-matter of this litigation, as set forth in plaintiff's petition, we think there can be no question that applicant sets forth a cause of action for the partial alienation of his wife's affections. The marital relation existing between these parties was a civil contract, binding, until it should be abrogated, upon both of the spouses. " He is entitled to the society of his wife. and may sue for damages any person enticing her away from him ; and, whenever a wife is not justified in abandoning her husband, he who knowingly and intentionally assists her in thus violating her duty is guilty of a wrong for which an action will lie." See 2 Lawson, Rights, Rem. & Prae. § 714. "It is a legal presumption that a wife's services and the comfort of her society are fully equivalent to any obligations which the law imposes upon her hus- band because of the marital relation, and her obligation to render family service is coextensive with that of her husband to support her in the family. Id. § 715 ; Schouler, Dom. Rel. § 41 ; Bennett V. Smith, 21 Barb. 439 ; Barnes v. Allen, 30 Barb. 663. A hus- band, from time immemorial, has an interest in the services of his wife, springing from the marital relation. In this state, suits for personal injuries to her must be maintained by the husband predicated upon this idea. The suit here was brought for dam- ages on an alleged partial alienation of the affections of his wife. Sec. 2.] PEESONAL SECURITY, LIBERTY, ETC. 379 and it was averred that, on account of the past conduct of the de- fendant in that suit, plaintiff was apprehensive, and had just grounds to fear, that, by a continuance thereof, the wife's affec- tions would be entirely alienated. There would consequently be a breach and destruction of the matrimonial contract existing be- tween the parties, by which plaintiff would entirely lose the affec- tions and services of his said wife. These, it must be conceded, were of a peculiar value to plaintiff'; and it would seem that, if the court had the power to maintain this suit for damages on ac- count of a partial alienation of the affections of his said wife, he would have a right to invoke the restraining power of a court of equity to prevent the utter alienation of his wife's affection and the utter destruction of the marital agreement. We believe this would be so under the liberal rules of equity, as now practiced in the courts, but much more so under the provisions of our statute on the subject of injunctions. Article 2989, Rev. St., provides that the judges of the district courts may grant writs of injunc- tions in the following cases: " (1) "Where it shall appear that the party applying for said writ is entitled to the relief demanded, and such relief or any part thereof requires the restraining of some act prejudicial to the applicant. ' ' This provision shows that it was intended to be broader than the ordinary authority, be- cause, in the third subdivision of the act, the court is authorized to grant the writ in all other cases where the applicant for said writ vaaj show himself entitled thereto under the principles of equity. For a construction of these provisions, see the able opin- ion of Judge Denman of the supreme court in Sumner v. Craw- ford, 91 Tex. 129, 41 S. W. 994. After reciting the provisions of the statute, the learned judge uses this language: "It will be ob- served that the latter portion of the article requires the case to be brought within the rules of equity, and. does not undertake to state the circumstances entitling the applicant to the writ, and there- fore, under it, it must appear that there is no 'adequate remedy at law,' as that term has always been understood. But the first portion of the article does state what facts will justify the issu- ance of the writ thereunder, and does not require that there shall be no adequate remedy at law." And we would further suggest that the question decided in said case is very much in point in this case, as showing the liberality of our courts in granting writs of injunction. The court below, it will be conceded, had jurisdiction and authority to maintain the suit, and it cannot be seriously questioned that the principal object of the suit was to preserve the marital relations existing between plaintiff and his spouse, and to conserve, as far as may be, and rehabilitate, her affections for the plaintiff. It was claimed, by the continued conduct and interfer- ences of the defendant in that suit, that the integrity of the marital relation was threatened, and, if his course of conduct was suffered to continue, that the marital relation would be destroyed. Among other things, it was alleged that said defendant exercised an un- due influence over the wife of the plaintiff, and, if suffered to as- •380 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. sociate with her and visit her, it was very likely he would entirely corrupt and lead her astray, and therefore the power of the court was invoked to arrest these interferences, and defendant was en- joined from speaking to or talking with her, or visiting the house where she was staying. It occurs to us, if the suit was maintain- able, that the acts complained of were prejudicial to the plaintiff ; indeed, that, by their continuation, the real object of the suit would be entirely frustrated ; and that the court consequently had the power and authority to inhibit said defendant from interfer- ing with plaintiff's wife, and that this was no interference with the inalienable rights of the citizen to go where he pleased, and to associate with whom he pleased, and to pursue his own happiness in his appointed way, provided such course of conduct did not interfere with another's right. "He had a perfect right to so use his own as not to abuse another 's. ' ' Nor is there any inconsistency, when thus construed, between the freedom of speech and of the press and the integrity of the marital relation. The law is as much tound to protect the one as the other, and when both can be con- strued in harmony, it is the duty of the courts to protect both. It has been said that the applicant was not shown to have vio- lated the spirit of the injunction, inasmuch as no conversation was shown of a character calculated to persuade or lead away the wife of plaintiff ; but his conduct was certainly in violation of the letter of said injunction, and we cannot say that the court did not have the right and authority to make the injunction as broad as it did, as, under the allegations of the petition, it is shown that the de- fendant was not to be trusted in the society of Mrs. Morris, or to speak with her. But, even if it be conceded that the act of the court in this re- gard is of doubtful validity, — that is, that it may or may not be void, — still we do not feel inclined to interfere. "The defendant in that suit had his right to invoke the action of that court to dis- solve that injunction. He did not do so, but he saw fit to wilfully ■disregard it, and he now claims before this court that the same was absolutely void, and that he had the right to defy it and set it at naught. It occurs to us that the injunction could have been obeyed easily, without infringing upon any of the fundamental rights of the applicant. We accordingly hold that the applicant does not show himself entitled to be relieved. It is therefore or- dered that he be remanded to the custody of the sheriff of Dallas county, and undergo the sentence imposed upon him by the judge of the Forty-fourth judicial district court. It is further ordered that the costs incurred in this court be taxed against the applicant. That there is no equitable jurisdiction to enjoin the commission of a crime, see Hargett v. Bell, 134 N. C. 395, 46 S. E. 749, inserted at ch. 10, § 5, post. See "Injunction," Century Dig. §§ 165-175; Decennial and Am. T)ig. Key No. Series §§ 94-101. Sec. 3.] PERSONAL SECURITY, LIBERTY, ETC. 381 Sec. 3. Threats. GRIMES V, GATES, 47 Vt., 594, 19 Am. Rep. 129. 1874. What Threats are AcHonaile. [Action on the ease for writing a scandaious or tlireatening letter to- plaintiff. Demurrer by defendant. Demurrer sustained, and judgment against the plaintiff, from which she appealed. Reversed. The first count in the declaration alleged a threat to injure plaintiff,^ but did not state the character of the injury threatened. The other counts alleged threats of arrest and imprisonment and to accuse plaintiff of crimes punishable by imprisonment, and to take measures to have her arrested and imprisoned in the penitentiary. The supreme court holds that the demurrer should have been overruled as to all counts except the first — that is, that all the counts set up a cause of action except the first.] "Wheblee, J. Threats of bodily hurt which occasion such inter- ruption or inconvenience as is a pecuniary damage, are actionable. Not the threats alone, but the threats and consequent damage to- gether. 3 Blk. Com. 120; 2 Com. Dig. Battery, D; Jacob's Law Diet. tit. Threats; Bouv. Law Diet. tit. Menace; 1 Swift's Dig. 477. The extortion of money or property by means of such threats is, at common law, indictable. The Queen v. Woodward, 11 Mod. 137, 6 East, 133 ; 3 Chit. Crim. Law, 607. The threats make the cause of action, by producing fear which causes damage ; and the crime, by producing fear which compels the giving over of money or property. A mere vain fear is not sufficient. It must be founded upon an adequate threat. Co. Lit. 253b; The King v. Southerton, 6 East, 126 ; Taft v. Taft et ux., 40 Vt. 229. A threat of imprisonment is a threat of bodily hurt, and would seem to be sufficient. Co. Lit. 253b; The King v. Southerton, supra. In de- claring for such an injury, the pleader must "show some just cause of feare, for feare of itself is intemall and secret." Co. Lit. 253b. In indictments for such threats, it is not necessary to set forth the words in which the threats were made, but only the sub- stance of the threat. 3 Chit. Crim. Law, 607. No reason for any greater particularity in civil cases is apparent. In actions for slander, the injury is occasioned wholly by the words, and the words must be set forth, so as to show that they were such as would occasion an actionable injury, or no cause of action would be set forth. So in indictments on statutes for sending threaten- ing letters of certain kinds, the letters must be set out, so that they may appear to be such as the statutes were directed against. 2 East, P. C. 1122. The gist of this action is not the use of words to the injury of reputation, nor the writing of anything prohibited by a particular statute, but is the threatening so as to cause pe- cuniary damage. It would seem to be sufficient, as to this, to set forth in substance the making of such a threat as would be ade- quate to the result. The only threat alleged in the first count is, that the defendants did threaten the plaintiff with great injury. This may have meant an injury to property, and not to person. 382 PERSONAL SECURITY, LIBERTY, ETC. [CJl. 3. and something remote and fanciful, and not any thing direct and tangible. Such allegations are to be taken most strongly against the pleader. Such threats would not be sufficient to awe persons of ordinary firmness. And the count does not set forth that the defendants knew of any reason why the plaintiff could not with- stand as much and as severe threatening as ordinary persons. If there was such a reason that the defendants knew of, and took ad- vantage of, and thereby, and by making the threat alleged, they injured the plaintiff, and all these facts were alleged, the count would, probably, be sufficient. But such facts not being alleged, cannot be presumed to exist. There seems to be a lack of any threat sufficient of itself, and of any threat made sufficient by ac- companying circumstances, alleged in this count, to make it suffi- cient. Taft V. Taft et ux., supra. In each of the other counts, a threat to imprison the plaintiff, or to cause her to be imprisoned, is distinctly alleged. In each one of all the counts it is alleged that the defendants made the threats intending to frighten, terrify, and injure the plaintiff, and that by means of the threats she was terrified, frightened, and made sick, and rendered unable to at- tend to her usual business and perform her usual work, and was thereby put to expense and made to suffer loss. These are suffi- cient allegations of pecuniary damage. Underhill v. Welton, 32 Vt. 40. All the counts, except the first, seem to set forth sufficient facts when admitted by demurrer or found by a jury, to constitute good ground of recovery. The pro forma judgment that the declaration was insufficient is reversed as to all the counts but the first, and the cause is re- manded, with leave to the parties to move for amendment or re- pleader, in the county court. See 28 Am, & Eng. Enc. Law, 140 et seq.; Revisal, § 3428. See "Threats," Century Dig. § 14; Decennial and Am. Dig. Key No. Series § 10. Sec. 4. Assault and Battery. SCOTT V. SHEPHERD, 2 Wm. Blackstone, 892, 898. 1773. What Acts Amount to a Direct Assault or Trespass. r Scott, an infant by his next friend, brought an action of trespass vi et armis against Shepherd, an infant who defends by his guardian ad litem. Verdict against defendant subject to the opinion of the court as to whether this action would lie. The decision was that the action did lie, and judg- ment was entered against the defendant. The defendant threw a lighted squib into a market house wherein a large concourse of people were assembled. The squib fell upon the stand of Yates, a seller of gingerbread. Willis, to save himself and Yates' gingerbread, threw the squib across the market house. It fell on the gingerbread stand of Ryall who threw it to another part of the building. The squib when thrown by Ryall fell in the face of the plaintiff and put out one of his eyes. The question presented is: Under the circumstances stated, did Shepherd's act of throwing the squib into the crowded market house, constitute a direct assault or trespass upon Scott?] Sec. 4.] PERSONAL SECURITY, LIBERTY, ETC. 383 De Gray, C. J. . . . The real question certainly does not turn upon the lawfulness or unlawfulness of the original act. For actions of trespass will lie for legal acts when they become tres- passes by accident. As in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, etc. They may also not lie for the consequences even of illegal acts, as that of casting a log in the highway, etc. But the true question is, whether the injury is the direct and immediate act of the defendant, and I am of opinion that in this case it is. The throwing of the squib was an act unlaw- ful and tending to affright the bystanders. So far, mischief was originally intended; and not any particular mischief, but mis- chief indiscriminate and wanton. "Whatever mischief therefore follows, he is the author of it; egreditur personam, as the phrase is in criminal cases. And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered as the doer of all that fol- lows; if done with a deliberate intent, the consequences may amount to murder; if incautiously, to manslaughter. Fost. 261. So too in Ventr. 295. A person breaking a horse in Lincoln's Inn Fields hurt a man, held that trespass lay: and 2 Lev. 172, that it need not be laid scienter. I look upon all that was done subse- quent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by burst- ing. And I think that any innocent person removing the danger from himself to another is justifiable ; the blame lights upon the first thrower. The new direction and new force flow out of the first force, and are not a new trespass. The writ in the Register, 95b, for trespass in maliciously cutting down a head of water, which thereupon flowed down to and over- whelmed another's pond, shows that the immediate act need not be instantaneous, but that a chain of effects connected together will be sufficient. It has been urged that the intervention of a free agent will make a difference : but I do not consider Willis and Ryall as free agents in the present ease, but acting under a compulsive necessity for their own safety and self-preservation. On these reasons I concur with brothers Gould and Nares that the present action is main- tainable. See "Negligence," Century Dig. §§ 74-79; Decennial and Am. Dig. Key No. Series §§ 61, 62. CLARK V. DOWNING, 55 Vt., 259, 45 Am. Rep. 612. 1882. What Constitutes an Assault. i [Plaintiff sues for an assault and battery. The proof was that defend- ant struck the horse that plaintiff was driving. Judgment against the plaintiff, and he appealed. Reversed.] 384 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. RoYCE, C. J. . . . Did the striking of the plaintiff's horse constitute an assault upon the plaintiff ? It is not necessary to con- stitute an assault that any actual violence be done to the person. If the party threatening the assault have the ability, means, and apparent intention to carry his threat into execution, it may in law constitute an assault. The disposition, accompanied with a present ability to use violence, has been held to amount to an assault. Where violence is used it is not indispensably necessary that it should be to the person. It was decided in Hopper v. Reeve, 7 Taunt. 698, that the upsetting of a chair or carriage in which a person was sitting was an assault; in Martin v. Shopp, 3 C. & P. 373, that riding after a person at a quick pace and compelling him to run into his garden to avoid being beaten was an assault; that the striking of the horse upon which the wife of the plaintiff was riding was an assault upon the wife. 1 Stephen, N. P. 210. An assault is defined in Hays v. People, 1 Hill, 351, to be an attempt with force or violence to do a corporal injury to another. The striking of the plaintiff's horse in the manner that his evi- dence tended to show, would probably result in a corporal injury to him; hence the requests should have been complied with. . . Judgment reversed. For what acts constitute an assault as distinguished from a battery, see State v. Martin, 39 Am. Rep. 711, and note. See "Assault and Bat- tery," Century Dig. §§ 1-4; Decennial and Am. Dig. Key No. Series §§ 1-7. TUBERVILLE v. SAVAGE, 1 Modern, 3. 1670. What Does Not Constitute an Assault. Action of assault, battery, and wounding. The evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said : "If it were not assize-time, I would not take such language from you. ' ' The question was, if that were an assault ? The court agreed that it was not ; for the declaration of the plain- tiff was, that he would not assault him, the judges being in town ; and the intention as well as the act makes an assault. Therefore if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one, in- tending to assault, strike at another and miss him, this is an as- sault : so if he hold up his hand against another in a threatening manner and say nothing, it is an assault. In the principal case the plaintiff had judgment. See State v. Myerfield, 61 N. C. 108. See "Assault and Battery," Century Dig. §§ 1-4; Decennial and Am. Dig. Key No. Series §§ 1-7. Sec. 4.] PERSONAL SECURITY, LIBERTY, ETC. 385 LEWIS V. HOOVER, 3 Blackford, 407. 1834. Assault Without Battery or Special Damage. [Action of trespass. Verdict and judgment against plaintiff, and he carried the case to the supreme court by writ of error. Reversed. The error assigned was this: The judge charged that if defendant struck at the plaintiff in an angry and violent manner, but no damage resulted therefrom, they ought to find for the defendant.] Stevens, J. . . . The only question to be determined is, whether that latter and additional charge of the court was correct ? An assault is an attempt or offer with violence to do a corporal hurt to another, as if one lift up his cane or fist at another in a threatening manner, or strike at him with a stick, his fist, or any weapon, within striking distance, but miss him. This is called an unlawful setting upon one's person, and is an inchoate violence for which the party assaulted may have redress by an action of trespass vi et armis, and shall recover damages as compensation, although no actual injury or suffering is proved. The damages are not assessed for the mere corporal injury or pecuniary loss, but for the malicious and insulting conduct of the defendant. 3 Blk. Com. 120 ; 1 Bac. Abr. 242 ; 1 Saund. on PI. & Ev. 103, 104. From this it appears that the above additional and latter charge of the circuit court to the jury is incorrect, and should not have been given. Judgment reversed. See "Assault and Battery," Century Dig. §§ 1-4; Decennial and Am. Dig. Key No. Series §§ 1-7. NEWELL V. WHITCHER, .53 Vt., 589, 38 Am. Rep. 703. 1880. Assault. What Amounts to. Assault Without Physical Injury. Fright. [Plaintiff, who was a blind girl and a guest at defendant's house, sued the defendant in trespass with three counts — Trespass vi et armis, Tres- pass q. c. f., and Trespass on the Case — for entering her room, sitting on her bed, and soliciting her to sexual intercourse. Judgment against the defendant, and he appealed. Affirmed. The plaintiff suffered no direct physical injury; but was so excited, alarmed, frightened, and outraged in her feeelings, that she was made sick. The judge instructed the jury that they might give punitive damages.] Redfield, J. . . . 1. It is claimed that the entry into the plaintiff's private apartments did not support the action of tres- pass quare clausum: but Ave think that her right to her private sleeping room during the night under the circumstances of this case, was as ample and exclusive against the inmates of the house as if the entry had been made into her private dwelling house through the outer door. Her right of quiet occupancy and privacy was absolute and exclusive : and the entry by stealth in the night, into such apartments, without license or justifiable cause, was a trespass; and if with felonious intent, was a crime. State v. Clark, 42 Vt. 630. Remedies — 25. 386 PERSON.VL SECURITY, LIBERTy, ETC. [Ch. 5. 2. The approach to her person in the manner her testimony tends to prove — sitting on the bed and bedclothes that covered her person, and leaning over her with the proffer of criminal sexual intercourse, so near as to excite the fear and apprehension of force in the execution of his felonious purpose, was an assault. The whole act and motive was unlawful, sinister and wicked. The act of stealing stealthily into the bedroom of a virtuous woman at midnight to seek gratification of criminal lust, is sufficiently dis- honorable and base in purpose and in act ; but especially so, when the intended victim is a poor, blind girl under the protecting care of the very man who would violate every injunction 'of hospitality, that he might dishonor and ruin at his own hearthstone this un- fortimate child, who had the right to appeal to him to defend her from stich outrage. Alexander v. Blodgett, 44 Vt. 476. 3. The court charged the jury that if the plaintiff was so fright- ened and shocked in her feelings as to injure her health by defend- ant's conduct as described in her testimony, she could recover damages for such injury. The defendant 's counsel asked the court to charge, in substance, that if defendant's acts and conduct would not have injured a person of ordinary nerve and courage, then there could be no recovery. When the acts of the party com- plained of arc of themselves innocent and harmless, and may be- come wrongful by the manner in which they are done, then a man is to be judged by the common and ordinary effect of such acts. But when a married man breaks into the bedroom of a chaste and honest woman at midnight, and proposes to her sexual and crimi- nal commerce with her. the act is wholly wrongful; the aim and purpose is wrongful and the act if perpetrated is criminal ; and the party offending must answer in damages for all actual injuries. And we think in this case, if all the facts claimed by the plaintiff in her testimony were found to be true, the plaintiff had a right to recover. And the charge of th(i court as to exemplary damages was sound. Judgment affirmed. See Mitchell v. Rochester R. Co., 151 N. Y. 107, § 5, post. A railroad company is liable in damages to a female passenger for improper pro- posals made to her by its conductor. Strother v. R. R., 123 N. C. 197, 31 S. B. 386. For when an action will and will not lie for pain and injury resulting from fright caused by the unlawful act or negligence of an- other, see Ewing v, R. R., 23 Atl. 340, 14 L. R. A. 666; Hill v. Kimbell, 13 S. W. 59, 7 L. R. A. 618; Huston v. Freemansburg, 61 Atl. 1022, 3 L. R. A. (N. S.) 49, and elaborate note. See also sec. 5, post; Rasor v. Quails, 4 Blackt. 286, and Brame v. Clark, 148 N. C. 364, 62 S. E. 418, both inserted at ch. 3, § 12, ante; and Craker v. R. R., 36 Wis. 675, inserted post in this section. See "Assault and Battery," Century Dig. §§ 1-4; Decennial and Am. Dig. Key No, Series §§ 1-7. FULLERTON v. WARRICK, 3 Blackford, 219. 1833. Provocation as a Defense to an Action for Assault, etc. [Action for damages for an alleged assault and battery. In mitigation of damages the defendant proved frequent slanders of himself by the plaintiff; but there was no proof that such slanders were uttered on the Sec. 4.] PERSONAL SECURITY, LIBERTY, ETC. 387 occasion of the assault and battery. Verdict and judgment against de- fendant, and he appealed. Reversed.] Stevens, J. . . . The only question before the court is, whether the evidence set out in the record was correctly permitted to go to the jury, in mitigation of damages. The law, in tenderness to human frailties, distinguishes between an act done deliberately and an act proceeding from a sudden heat. As, if upon a sudden quarrel two persons fight and the one kills the other, this has been adjudged only manslaughter. So, if a man be greatly provoked, as by pulling his nose, or other great indig- nity, and immediateh'^ kills his aggressor, though this is not ex- cusable, the offense is mitigated homicide. But in every case of homicide upon provocation, if there be any time intervening be- tween the insult and the killing, sufficient for passion to subside and reason to interpose, the offense becomes murder. In analogy to this principle, evidence in civil actions for assault and battery is admitted, in mitigation of damages, to show a provocation on the part of the person complaining of the injury. But the provo- cation must be so recent as to induce a fair presumption that the violence done, was committed during the continuance of the feel- ings and passions excited by it, before the blood has had time to ■ cool ; a different rule would greatly encourage breaches of the peace, rencounters, and brutal force. For the purpose of' illus- tration, we will notice two or three leading cases. First, the case of Avery v. Ray et al., 1 Mass. 12. This was an action of trespass, assault and battery, tried on the plea of not guilty. The defendants offered to prove, in mitigation of damages, that the plaintiff reported that the sister of Ray, one of the de- fendants, had openly solicited the plaintiff to have carnal connec- tion with her ; that Ray, having heard that, called on him to know whether he had or had not said so, and that he refused to confess or deny it ; that the defendant then told him that he would chastise him for it, and did so; and for that chastisement the action was brought. The court said that the admission of such evidence is contrary to all rule ; that immediate provocations are admitted in mitigation of damages, but when time for reflection has intervened, so as to give the blood time to cool, they are not admitted. Secondly, the Case of Lee v. Woolsey, 19 Johns. 319. This was an action of trespass, assault and battery, also, tried on the plea of not guilty, in the month of July, 1820. The defendant was a post-captain in the navy, and the plaintiff was an attorney at law. On the trial the defendant offered to prove, in mitigation of dam- ages, that in the month of February preceding, the plaintiff had addressed to the secretary of the navy a scandalous and defama- tory letter respecting the defendant, charging him with having em- bezzled the public property under his care as a post-captain, and that that letter had been circulated among the citizens of the place where the parties resided, and had been known to the defendant only a few hours before the time of committing the violence com- plained of; and that at the time of committing the violence, and 38y PERSONMi SECURITY, LIBERTY, ETC. [Ch. 5. before the commencement of the attack, the defendant asked the plaintiff whether he was the author of that scandalous and de- famatory communication or not, and he admitted that he was, but stated that he wrote it as an attorney, and was paid for it. The defendant also offered to prove that on the day before the attack was made by him on the plaintiff, the plaintiff had made scandal- ous insinuations against him respecting his having embezzled the public property. The court said that the evidence was not ad- missible in mitigation of damages, there having been time between the provocations and the assault for deliberate reflection. "We will notice one other case only, and that is the ease of Rochester v. Anderson, 1 Bibb, 428. In that case the defendant offered to prove, in mitigation of damages, that the plaintiff had circulated slanderous reports about him, and for that he had as- saulted him. The court refused the evidence on account of the time which intervened between the time of giving the insult and the time of making the assault. The court in that case says that such opprobrious language, if used at the time of the battery, and especially if used with an intent of provoking a quarrel, would be legal evidence in mitigation of damages ; but if there have been time for deliberation, the peace of society requires that men should suppress their passions. There is nothing upon the record before us which authorizes us to presume that the evidence in question was correctly per- mitted to go to the jury. The judgment is reversed. For the general subject of provocation as a defense or mitigation, see 1 L. R. A. (N. S.) 137; 11 Ibid. 670. See "Assault and Battery," Century Dig. §§ 10, 48; Decennial and Am. Dig. No. Series §§ 12, 34. PALMER V. R. R. and ELECTRIC CO., 131 N. C. 250, 42 S. E. 604. 1902. Provocation as a Defense to an Action for Assault, etc. [Action for damages caused by an assault and battery upon the plaintiff by an alleged employee of the defendant. Only so much of the opinion as discusses provocation as a defense, is here inserted.! Clark, J. The plaintiff, while a passenger on the street car of the defendant, and somewhat intoxicated, used grossly insulting words to the motorman. Arrived at his destination, the plaintiff got out, deposited his bundles on the sidewalk, returned to the car. again got into an altercation with the motorman, turned, and left the car, whereupon the motorman followed him up, and, two or three steps from the car, struck the plaintiff on the back of the head with the lever which controlled the car, Imoeking him down. The fact that the plaintiff invited the assault by insulting lan- guage or provoking conduct would not bar recovery in a civil action, not even when the parties fight by consent. Bell v. Hansley, 48 N. C. 131 ; Williams v. Gill, 122 N. C. 967. 29 S. E. 879 ; Cooley, Sec. 4.] PERSONAL SECURITY, LIBERTY, ETC. 389 Torts (2d ed.), pp. 183, 187, 190. The rule in criminal actions is that no words, however violent and insulting, justify a blow, but, if a blow follows, both are guilty, though the party giving the insult strikes no blow. The insult is not a defense, but matter in mitigation of punishment. In a civil action, if the provocation is great, the jury will usually see fit to return nominal or small dam- ages ; and, if the amount is less than $50, the plaintiff recovers no more costs than damages. Code, § 525 (4). In the civil as in the criminal action, the provocation is a mitigation, not a defense. See "Carriers," Century Dig. § 1121; Decennial and Am. Dig. Key No. Series §§ 283, 341. STOUT V. WREN, 8 N. C. 420. 1821. Mutual Assaults. Volenti non fit Injuria, as a Defense. [Action for damages resulting from assault and battery. Plaintiff and defendant fought by agreement. The court charged that if plaintiff agreed to light he could not recover, unless he was too drunk to know what he was doing. Verdict and judgment against plaintiff, and he ap- pealed. Reversed.] Taylor, C. J. It is equally reasonable and correct, that a man shall not recover a recompense for an injury received by his own consent ; but. the rule must necessarily be received with this qualifi- cation: that the act from whence the injury proceeded be lawful. Hence, in those manly sports and exercises which are thought to qualify men for the use of arms, and to give them strength and activity, if two played by consent at cudgels, and one hurt the other, no action would lie. But where in an action for assault and battery, the defendant offered to give in evidence that the plaintiff and he boxed by consent, from whence the injury proceeded, it was held to be no bar to the action ; for, as the act of boxing is unlawful, the consent of the parties to fight could not excuse the injury. Boulter v. Clark, Buller N. P. 16. The consequence of this distinction is apparent also in the law of homicide; for if death ensue from innocent and allowable recreations, the case will fall within the rule of excusable homicide ; but if the sport be un- lawful, and endanger the peace, and death ensue, the party killing is guilty of manslaughter. Fost. 259. It is laid down in Mather V. Ollerton, Comberd. 218, that if one license another to beat him, such license is void, because it is against the peace ; and the plain- tiff recovered a verdict and judgment. The case was very fairly put to the jury, as to the evidence of the plaintiff's intoxication, but I think the law was misconceived in stating to them, that if the plaintiff was sober and assented, he was not entitled to recover. There must be a new trial. Hall, J. Upon principle unconnected with municipal law, or policy, I doubt how far a person is entitled to recover damages, after having agreed to take his chance in a combat, and after the 390 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. event had proved the miscalculation he had made upon his own strength: considering it merely as a violation of a private right, I should say, volenti non fit injuria. Where the state is a party by way of indictment, the consent of the party does not stand m the way of conviction, because the fine goes to the state for the injury done her, by a breach of the peace. However, the authority in Buller's N. P. 16, is the other way, and I am inclined to be- lieve has policy for its support ; for these reasons, 1 acquiesce and agree that the rule for a new trial shall be made absolute. See Bishop, Non-Cont. Law, § 196; 20 L. R. A. (N. S.) 907, and note. See "Assault and Battery," Century Dig. § 9; Decennial and Am. Dig. Key No. Series § 11. STATE V. WILLIAMS, 75 N. C. 134. 1876. Volenti non fit Injuria, as a Defense. Ceremonies in Secret Society. [Indictment for assault and battery. Defendant was convicted, and ap- pealed. Affirmed. Defendant aided in suspending a woman from the wall by means of a cord fastened around her waist. The woman resisted to the extent of her ability. The actings of the defendant were in accordance with the rules of the "Good Samaritans," a benevolent society of which both the woman and the defendant were members. Defendant insisted that if he only intended to perform the usual ceremony of expulsion and was actuated by that motive alone — with no intention to hurt the woman — he was not guilty. The judge charged that such was not the law, but that defendant was guilty if he tied the cord around the woman against her consent.! Bynum, J. When the prosecutrix refused to submit to the cere- mony of expulsion established by this benevolent society, it could not be lawfully inflicted. Rules of discipline for this and all vol- untary associations must conform to the laws. If the act of tying the woman would have been a battery had the parties concerned not been members of the society of "Good Samaritans," it is not the less a battery because they were all members of that humane institution. The punishment inflicted upon the person of the prosecutrix was wilful, violent and against her consent, and thus contained all the elements of a wanton breach of the peace. Bell V. Hansly, 48 N. C. 131. Judgment afSrmed. For a discussion of the civil liability of fraternal societies for injuries, etc., inflicted upon members during initiation or expulsion ceremonies, see 13 L. R. A. (N. S.) 314, and note. See "Assault and Battery," Century Dig. §§ 68-74; Decennial and Am. Dig. Key No. Series i§ 47-53. PAUL V. FRAZIER, 3 Mass. 71. 1807. Volenti non fit injuria, as a Defense to Seduction. [Action of trespass on the case wherein a woman seeks to recover dam- ages for her own seduction. Verdict for plaintiff; defendant moved in arrest of judgment; and judgment was arrested. Plaintiff appealed. Af- firmed. The facts appear in the opinion.] Sec. i.J PEKSONAL SECURITY, LIBERTY, ETC. 391 Parsons, C. J. This is an action on the ease to recover damages against the defendant for seducing the plaintiff: under a false pre- tense of courtship and intention of marriage, and for getting her with child, whereby her reputation has suffered, and her peace of mind been injured. After a verdict for the plaintiff on the issue of not guilty, the defendant moves to arrest the judgment. And Ave are of opinion that the judgment must be arrested. An action of this nature is not given by statute ; and there is no principle of the common law on which it can be sustained. Fornication and adultery are offenses in this commonwealth created by statute. And the declaration amounts to a charge against the defendant for deceiving the plaintiff, and persuading her to commit a crime, in consequence of which she has suffered damage. She is a par- taker of the crime, and cannot come into court to obtain satisfac- tion for a supposed injury to which she was consenting. It has been regretted at the bar that the law has not provided a remedy for an unfortunate female against her seducer. Those who are competent to legislate on this subject will consider, before they provide this remedy, whether seductions will afterwards be less frequent, or whether artful women may not pretend to be seduced, in order to obtain a pecuniary compensation. As the law now stands, damages are recoverable for a breach of promise of mar- riage ; and if seduction has been practiced under color of that promise, the jury will undoubtedly consider it as an aggravation of the damages. So far the law has provided ; and we do not pro- fess to be wiser than the law. Action for seduction brought by divorced woman or widow, see 21 L. R. A. (N. S.) 265. In Hood V. Sudderth, 111 N. C. 215, 16 S. E. 397, the rule of volenti non fit injuria was set aside in cases of seduction — "a ruling since followed in Missouri, Arkansas and other states." Willeford v. Bailey, 132 N. C. at p. 404, 43 S. E. 928. In the opinion and the dissenting opinion in Hood V. Sudderth, supra, will be found a thorough discussion of both sides of the question. See also Scarlett v. Norwood, 115 N. C. 284, 20 S. E. 459; Mordecai's Law Lect. 388. See ch. 6, § 2 (c), post. See 123 N. C. mid. p. 199. See "Seduction," Century Dig. § 17; Decennial and Am. Dig. Key No. Series § 9. COLE V. TURNER, 6 Modern, 149. 1705. What Constitutes a Battery. Holt, Chief Justice, upon evidence in trespass for assault and battery, declared: First, That the least touching of another in anger is a battery. Secondly, If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery. Thirdly, If any of them use violence against the other, to force his way in a rude inordinate manner, it will be a battery ; or any struggle about the passage to that degree as may do hurt, will be a battery. 392 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 3. It was an action of battery by husband and wdfe, for a battery upon the husband and wife, ad damnum ipsorum ; and though the plaintiff had a verdict, yet the chief justice said, he should never have judgment. And the judgment was after arrested above upon that exception. Administering croton oil, in jest, is a battery. State v. Monroe, 121 N. C. 677, 28 N. C. 547, inserted at ch. 5, § 6, post. That laws excluding un- vaccinated children from the public schools are valid, and that a refusal to be vaccinated may be made criminal, see Jacobson v. Mass., 197 U. S. 11, 25 Sup. Ct. 358, 183 Mass. 242; Hutchins v. Durham, 137 N. C. 68, 49 S. E. 46; State v. Hay, 126 N, C. 999, 35 S. B. 459, 49 L. R. A. 588; Morris v. Col- umbus, 30 S. B. 850, 42 L. R. A. 175; People ex rel. Jenkins v. Bd. of Ed., 84 N. E. 1046, 17 L. R. A, (N. S.) 709, and note. For whether or not it can be made lawful to vaccinate one forcibly against his will, see Levin V. Burlington, 129 N. C. 184; People v. Bd. of Bd. supra — in the note to which case it is said that no American case can be found which holds the afBrmative, though it is practiced in England. See "Assault and Battery," Century Dig. §§ 1-4; Decennial and Am. Dig. Key No. Series §§ 1-7. CRAKER V. C. & N. W. R. R. Co., 36 Wis. 657, 677. 1875. Measvre of Damages in Actions for Personal Insult, Injury, and Fright. [Action for insulting, violent, and abusive acts alleged to have been done to the plaintiff by the conductor of defendant's train while plaintiff was a passenger thereon. Verdict and judgment against defendant for $1,000, and defendant appealed. Affirmed. The proof was that the conductor put his arms around the plaintiff ana kissed her five or six times. The judge charged that the measure of plaintiff's damages would be such compensation as the jury might see fit to award for the injury sustained, including injury to the feelings, "the elements of -nhich are, such insult, indignity, contumely and the like, as she may have suffered; " that they could not give vindictive damages. This charge is approved by the supreme court which classes mental suf- fering as an element of compensatory, as distinguished from punitory, damages. Only that part of the opinion which bears directly and author- itatively on the question of damages, is here inserted.] Ryan, C. J. . . In giving the elements of damages, Mr. Sedgwick distinguishes between "the mental suffering produced by the act or omission in question: vexation: anxiety:" which he holds to be grounds for compensatory damages: and the "sense of wrong or insult, in the sufferer's breast, from an act dictated by a spirit of wilful injustice, or by a deliberate intention to vex, de- grade or insult, ' ' which he holds to be ground for exemplary dam- ages only. Sedgwick's Meas. Dam. 35. Mr. Sedgwick himself says that the rule in favor of exemplary damages "blends to- gether the interests of society and the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender" (lb. 38) ; and following him. this court held in the leading case of Mc Williams v. Bragg, 3 Wis. 424, and has often since reaffirmed, that exemplary damages are "in addition to ac- tual damages." In actions of tort, as a rule, when the plaintiff's right to re- Sec. 4.\ PERSONAL SECURITY, LIBERTY, ETC. 393 cover is established, he is entitled to full compensatory damages. When proper ground is established for it, he is also entitled to ex- emplary damages, in addition. The former are the compensation of the plaintiff; the latter, for the punishment of the defendant and for example to others. This is iSedgwiek's blending together of the interest of society and the interest of plaintiff. And it is plain that there cannot well be common ground for the two. The injury to the plaintiff is the same, and for that he is entitled to full compensation, malice or no malice. If malice be established, then the interest of society comes in, to punish the defendant and deter others in like cases, by adding exemplary to compensatory damages. We need add no authority to Mr. Sedgwick's that, in actions for personal tort, mental suffering, vexation and anxiety are subjects of compensation in damages. And it is difficult to see how these are to be distinguished from the sense of wrong and insult arising from injustice and intention to vex and degrade. The appearance of malicious intent may indeed add to the sense of wrong; and equally, whether such intent be really there or not. But that goes to mental suffering, and mental suffering to compensation. So it seems to us. But if there be a subtle, metaphysical distinction which we cannot see, what human creature can penetrate the mys- teries of his own sensations, and parcel out separately his mental suffering and his sense of wrong — so much for compensatory, and so much for vindictive damages ? And if one cannot scrutinize the anatomy of his own, how impossible to dissect the mental agonies of another, as a surgeon does corporal muscles. If possible, juries are surely not metaphysicians to do it. And we must hold that all mental suffering directly consequent upon tort, irrespectively of all such inscrutable distinctions, is ground for compensatory dam- ages in an action for the tort. With these views, we can see no error in the charge of the court below on the subject of damages. The respondent appears to be of respectable rank in life, and of sufficient culture to qualify her for teaching in public schools. In the painful trial of character and temper of the scene which cul- minated in the assault, in her action and demeanor following upon it, in the interview intruded upon her by the appellant, and in the embarrassment of her examination on the trial, she appears to have acted with great propriety, free from all exaggeration and affecta- tion. She appears in the record to be a person who would feel such wrong keenly. She was entitled to liberal damages for her terror and anxiety, her outraged feelings and insulted virtue, for all her mental humiliation and suffering. We cannot say that the damages are excessive. We might have been better satisfied with a verdict for less. But it is not for us, it was for the jury, to fix the amount. And they are not so large that we can say that they are unreasonable. Who can be found to say that such an amount would be in excess of compensation to his own or his neighbor's wife or sister or daughter? Hewlett v. Cruchley, 5 Taunt. 277. We cannot say that it is to the respondent. Judgment affirmed. See note to Scott v. Shepherd, 2 Wm. Blk. 892, and Newell v. Whltcher, 394 PERSONAL SECURITY, LIBERTY, ETC. [Clt. 5. 53 Vt. 507, iiuth inserted ante in this section. See "Carriers," Century Dig. § 1344; Decennial and Am. Dig. Key No. Series § 319, "Damages," Century Dig. § 255; Decennial and Am. Dig. Key No. Series § 102. Sec. 5. Injuries to the Person resulting from Negligence. LEAMB V. BRAY, 3 Bast, 593. 1803. When Trespass vi et armis, and when Trespass on the Case Lies. [Trespass vi et armis for defendant's colliding with plaintiff's curricle, causing plaintiff's horses to run away, whereby plaintiff had to leap from the curricle in self-preservation, fracturing his collar bone in consequence. The evidence showed negligence on the defendant's part rather than wil- ful misconduct; for the only blame imp\ited to him was driving on the wrong side of the road on a dark night when his carriage could not be seen. The defendant insisted, therefore, that if plaintiff's Injury resulted from the negligence of the defendant, this action would not lie, but tres- pass on the case was the proper remedy. Judgment of nonsuit was en- tered against the plaintiff, who moved to set aside the nonsuit. The non- suit was set aside in this court upon the ground that trespass vi et armis was the proper remedy.] Lord Ellenborough, C. J. The true criterion seems to be ac- cording to what Lord C. J. De Grey says in Scott v. Shepherd, whether the plaintiff received an injury by force from the defend- ant. If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern. It is immaterial whether the in- jury be wilful or not. As in the case alluded to by my Brother Grose, where one shooting at butts for a trial of skill with the bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view; yet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury from an act of force by another. So also was the case of "Weaver V. Wood, in Hob. 134, where a like unfortunate accident happened whilst persons were lawfully exercising themselves in arms. So in none of the cases mentioned in Scott v. Shepherd did wilfulness make any difference. If the injury were received from the per- sonal act of another, it was deemed sufficient to make it a trespass. In the case of Day v. Edwards, the allegation of the act having been done furiously was understood to imply an act of force imme- diately proceeding from the defendant. As to the case of Ogle v. Barnes, I incline to think it was rightly decided ; and yet there are words there which imply force by the act of another; but. as was observed, it does not appear that it must have been the personal act of the defendants; it is not even alleged that they were on board the ship at the time : it is said indeed that they had the care, direction, and management of it; but that might be through the medium of other persons in their employ on board. That there- fore might be sustained as an action on the case, because there Sec. 5.] PERSONAL SECURITY, LIBERTY, ETC. 395 were no words in the declaration which necessarily implied that the damage happened from an act of force done by the defendants themselves. I am not aware of any case of that sort, where the party himself sued having been on board, this question has been raised. But here the defendant himself was present, and used the ordinary means of impelling the horse forward, and from that the injury happened. And therefore there being an immediate injury from an immediate act of force by the defendant, the proper rem- edy is trespass; the wilfulness is not necessary to constitute the trespass. G-ROSE, J. I am of the same opinion. Looking into all the cases from the year book in the 21 Hen. 7, down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the im- mediate cause of it, though it happen accidentally or by misfor- tune, yet he is answerable in trespass. The case mentioned from Strange, that in Hobart, and those in the Term Reports, all agree in the principle. • See "Action," Century Dig. §§ 236-255; Decennial and Am. Dig. Key- No. Series § 30. BALT. CITY PASS. RY. CO. v. KEMP, 61 Md. 619, 48 Am, Rep. 134. 1883. Remedy of a Passenger Injured 63/ Negligence of Carrier. [Kemp and his wife sued for damages resulting to the wife from the negligence of the railway company. The case went to the supreme court and was decided for Kemp and his wife, and this is a motion for re-argu- nient. The court overruled the motion. The wife was a passenger at the time of the injury. This action is one in tort. The railway company insisted that, while the form of the action is tort, the real ground of the right to recover is the breach of the con- tract to carry the passenger safely; and, that being so, no recovery can be had except for such injury as may fairly be taken to have been contem- plated as the possible result of the breach of the contract. The court, after announcing that it cannot approve of that proposition, proceeds : ] Alvey, C. J. . . .A common carrier of passengers, who accepts a party to be carried, owes to that party a duty to be care- ful, irrespective of contract ; and the gravamen of an action like the present is the negligence of the defendant. The right to main- tain the action does not depend upon contract, but the action is founded upon the common-law duty to carry safely ; and the negli- gent violation of that duty to the damage of the plaintiff is a tort or wrong which gives rise to the right of action. Bretherton v. Wood, 3 B. & Bing. 54. If this were not so, the passenger would occupy a more unfavorable position in reference to the extent of his right to recover for injuries than a stranger; for the latter, for any negligent injury or wrong committed, can only sue as for a tort, and the measure of the recovery is not only for the actual suffering endured, but for all aggravation that may attend the commission of the wrong; whereas in the case of a passenger, if 396 PERSONAL SECURITY, LIBERTY, ETC. [Cli. 3. the contention of the defendant be supported, for the same charac- ter of injury, the right of recovery would be more restricted. The principle of these actions against common carriers of passengers is well illustrated by the case of a servant whose fare has been paid by the master; or the ease of a child for whom no fare is charged. In both of the cases mentioned, though there is no eon- tract as between the carrier and the servant, or as between the carrier and the child, yet both the servant and the child are pas- sengers, and for any personal injuries suffered by them, through the negligence of the carrier, it is clear they could sue and re- cover ; but they could only sue as for a tort. The authorities would seem to be clear upon the subject, and leave no room for doubt or question. In the case of Marshall v. York, Newcastle & Berwick K. Co., 11 C. B. 655, in discussing the ground of action against a common carrier, Jervis, C. J., said: "But upon what principle does the action lie at the suit of the servant for his personal suffering ? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely. ' ' And in the same ease Mr. Justice Williams said : ' ' The case was, I think, put upon the right footing by Mr. Hill, when he said that the question turned upon the inquiry whether it was necessary to show a con- tract between the plaintiff and the railroad company. His prop- osition was, that this declaration could only be sustained by proof of a contract to carry the plaintiff and his luggage for hire and re- ward to be paid by the plaintiff and that the traverse of that part of the declaration involves a traverse of the payment by the plain- tiff. I am of opinion that there is no foundation for that proposi- tion. It seems to me that the whole current of authorities, begin- ning with Govett v. Radnidge, 3 East, 62, and ending with Pozzi V. Shipton, 8 Ad. & El. 963, establishes that an action of this sort is, in substance, not an action of contract, but an action of tort against the company as carrier." And in the subsequent case of Austin V. Great Western R. Co., L. R. 2 Q. B. 442, Mr. Justice Blackburn, now Lord Blackburn, in delivering his judgment in that case said : " I think that what was said in the case of Marshall V. York, Newcastle & Berwick R. Co., 11 C. B. 655, was quite cor- rect. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely." And to the same effect and with full approval of the authorities just cited, are the eases of Foulkes v. Met. Dis. R. Co., 4 C. P. Div. 267 ; 30 Eng. Rep. 536, and the same case on appeal, 5 C. P. Div. 157: 30 Eng. Rep. 740 ; and Fleming v. Manchester, etc., R. Co.. 4 Q. B. Div. 81. The case of Bretherton v. Wood, 3 Bro. & Bing. 54. is a direct authority upon the question. A passenger may, without doubt, declare for a breach of con- tract, where there is one ; but it is at his election to proceed as for a tort where there has been personal injury suffered by the negli- Sec. 5.] PERSONAL SECURITY, LIBERTY, ETC. 397 gence or wrongful act of the carrier, or the agents of the company; and in such action the plaintiff is entitled to recover according to the principles pertaining to that class of actions, as distinguished from actions on contract. And this is the settled doctrine and prac- tice in this state. Stockton v. Frey, 4 Gill, 406 ; Bait. & Ohio R. Co. V. Blocher, 27 Md. 277, 287 ; Bait. & Yorktown Turnpike Co. v; Boone, 45 Md. 344; Stokes v. Saltonstall, 13 Pet. 181. The motion for reargument must be overruled. See Bowfers v. R. R., 107 N. C. 721, 12 S. E. 452, inserted at ch. 4, § 1, ante, and other cases cited in that section. Bowers v. R. R., supra, and Purcell V. R. R., 108 N. C. 414, at p. 422, 12 S. E. 954, 956, fully sustain the principal case. See also 14 L. R. A. (N. S.) 526, and note (passenger trav- eling under illegal contract); 14 lb. 464, and note (passenger to whom wrong ticket has been sold by carrier's agent) ; 9 lb. 1060, and note (pas- senger submitting to ejection to lay the foundation for an action); 5 lb. 1012, and note (failure to furnish berth on a boat); 8 lb. 880, and note (failure to stop train for intending passenger); 7 lb. 188, 9 lb. 1218, 21 lb. 850, and notes (loss, etc., of baggage). RAILROAD CO. v. JONES, 95 U. S. 439, 441-443. 1877. Negligence and Contributory Negligence Defined. [Action by Jones to recover damages resulting from the alleged negli- gence of the railroad company. Verdict and judgment against the rail- road company, and it carried the case to the supreme court by writ of er- ror. Reversed. Jones was employed as a laborer. The laborers were in the habit of riding on the pilot of the engine, when they chose to do so, although there was a box-car provided for them. Jones, while riding on the pilot, was hurt by a collision with some box-cars in a tunnel. Jones had been cau- tioned against riding on the pilot. There was room for him in the box car, and, if he had been in that car, he would not have been hurt. The judge was requested to charge that Jones could not recover if he knew that riding on the pilot was dangerous and that the box-car was the proper place for him. The refusal to give this instruction is the point in the case.l Mr. Justice Swaynb. . . As to contributory negligence on the part of the plaintiff. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circum- stances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion. See Wharton on Negligence, § 1, and notes. One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is: 1. Whether the damage was occasioned entirely 398 PERSONAL SECURITY. LIBERTY, ETC. [Cll. 5. by the negligence or improper conduct of the defendant; or, 2. Whether the plaintiff himself so far contributed to the misfor- tune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former ■case, the plaintiff is entitled to recover. In the latter, he is not. Tuff V. Warman, 5 C. B. (N. S.) 573; Butterfield v. Forrester, 11 East, 58; Bridge v. Grand Junction R. Co., 3 M. & W. 24-1; Davis V. Mann, 10 lb. 546 ; Clayards v. Dethick, 12 Q. B. 439 ; Van Lien V. Scoville Manufacturing Co., 14 Abb. (N. Y.) Pr. (X. S.) 74; Ince V. East Boston Ferry Co., 106 Mass. 149. It remains to apply these tests to the case before us. The facts with respect to the cars left in the tunnel are not fully disclosed in the record. It is not shown when they were left there, how long they had been there, when it was intended to remove them, nor why they had not been removed before. It does appear that there was a watchman at the tunnel, and that he and the conductor of the train from which they -were left, and the conductor of the train which carried the plaintiff, were all well selected, and competent for their places. For the purposes of this case, we assume that the defendant was guilty of negligence. The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cowcatcher, and obviously a place of peril, especially in case of collision. There was room for him in the box car. He should have taken his place there. He could have gone into the box car in as little, if not less, time than it took to climb to the pilot. The knowledge, assent, or direction of the company's agents as to what he did is. immaterial. If told to get on anywhere, that the train was late, and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing '\^■heels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have es- caped also if he had been there. liis injury was due to his own recklessness and folly. He was himself the author of his misfor- tune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit. The case is thus clearly brought within the second of the predicates of mutual neg- ligence we have laid down. Hickev v. Boston &^ Lowell R. Co.. 14 Allen (Mass.) 420 ; Todd v. Old Colonv R. Co., 3 Id. 18 ; S. C, 7 Id, 207; Gavett v. ]\I. & L. R. Co., 16 Grav (Mass.). 501; Lucas v. N. B. & T. R. Co. 6 Id. 64; Ward v. R. Co., 2 Abb. (N. Y.) Pr.. (.\. S.) 411 ; Galena & Chic. I'n. R. Co. v. Yarwood, 15 111. 468; Doggett v. 111. Cent. R. Co., 34 Iowa, 284. Sec. J.] PERSONAL SECUEITY, LIBERTY, ETC. 399 The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked upon this subject. If the company had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such direction, and error to refuse. Gavett v. M. & L. R. Co., supra; Merchants' Bank v. State Bank, 10 Wall. 604; Pleasant v. Fant, 22 "Wall. 121. Judgment reversed. In North Carolina the defense of contributory negligence must be set up by answer. Pell's Revisal, sec. 483, and notes; Dorsett v. Mfg. Co., 131 N. C. at p. 261, 42 S. E. 612. See "Negligence," Century Dig. §§ 1, 3, 4, 84; Decennial and Am. Dig. Key No. Series §§ 1, 2, 80; "Master and Servant," Century Dig. §§ 703, 786; Dec. and Am. Dig. Key No. Series §§ 233, 24.5. DEANS V. RAILROAD, 107 N. C. 686, 12 S. B. 77. 1890. Negligence. Gontribtitory Negligence. "Last Clear Chance." [Plaintiff, as administratrix of B. F. Deans, sued for damages result- ing from the death of her intestate, caused by the alleged negligence of the defendant. In deference to an intimation from the judge, the plain- tiff submitted to a nonsuit and appealed. Reversed. The evidence tended to prove that B. F. Deans was lying upon the track; that he could have been seen by the engineer in time to stop the train before reaching him; that the engineer's attention was called to Deans' position in time to have stopped the train, etc. The judge in- timated that the plaintiff could not recover. The question presented is: If B. F. Deans was guilty of contributory negligence, but, notwithstand- ing that fact, the accident could have been avoided if the railroad com- pany had exercised proper precaution, can the plaintiff recover?] Avery, J. "When this court, in the case of Gunter v. "Wicker, 85 N. C. 312, adopted the rule laid down in Davies v. Mann, 10 Mees. & "W. 545, that "notwithstanding the previous negligence of the plaintiff, if at the time when the injury was committed it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages, ' ' it was thenceforth aligned with one of two classes, holding widely diver- gent views as to the effect of contributory negligence on the part of a plaintiff, under certain circumstances, upon his right of recovery. That ruling has been expressly approved in a large number of later cases, and is now firmly grounded as a part of our system, in so far as it is distinct from that of any other courts where the com- mon law of England prevails. Farmer v. Railroad Co., 88 N. C. 564 ; Turrentine v. Railroad Co., 92 N. C. 638 ; Aycock v. Railroad Co., 89 N. C. 321 ; Troy v. Railroad Co., 99 N. C. 298, 6 S. B. Rep. 77; McAdoo v. Railroad Co., 105 N. C. 140, 11 S. E. Rep. 316; Dailv V. Railroad Co., 106 N. C. 301, 11 S. E. Rep. 320; Lay v. Railroad Co., 106 N. C. 404, 11 S. E. Rep. 412; Bullock v. Rail- road Co., 105 N. C. 180, 10 S. E. Rep. 988; Carlton v. Railroad Co., 104 N. C. 365, 10 S. E. Rep. 516; Wilson v. Railroad Co., 90 N. C. 69. See, also, Weymire v. Wolfe, 52 Iowa, 533, 3 N. W. Rep. 541 ; Railroad Co. v. Kellam, 92 111. 245 ; Meeks v. Railroad ■iOO PERSONAL SECURITY. LIBERTY, ETC. [Cll. 5. Co., 56 Cal. 513; Kenyon v. Railroad Co., 5 Hun, 479. In those states where the very opposite view was taken, it was held that where one went upon the track of a railroad company at a point other than a crossing, where the public have a right of way, without special license, he was a trespasser and could not recover for any injury inflicted upon him through the negligence of such com- panv's agents or employes, unless it was wanton. ]Mulherrin v. Railroad Co., 81 Pa, St. 366 ; Rounds v. Railroad Co., 64 N. Y. 129 ; Pennsylvania Co. v. Sinclair, 62 Ind. 301 : Donaldson v. Railroad, Co., 21 Minn. 293 ; Beach, Contrib. Neg. § 67 et seq. ; Express Co. v. Nichols, 33 N. J. Law, 434. In delivering the opinion in Manly v. Railroad Co., 74 N. C. 655, Justice Bynum, foreshadowed by an intimation the subsequent adoption by this court, in Gunter v. Wicker, supra, of the principle stated in Davies v. Mann, and after it had been approved in so many well-considered opinions, it be- came apparent that it would be illogical and inconsistent to adhere to the rule laid down in Herring v. Railroad Co., 10 Ired. 402, or the interpretation generally given to Judge Pearson's language by the leading text writers of this country. In that -case, the en- gineer might have seen two little negroes who were lying on the track asleep, according to conflicting testimony, from 200 yards to a half mile, before his engine reached them. He did not actually discover that the children were asleep till he was within twenty- five or thirty yards of them. The testimony showed also that the train could have been stopped by the engineer within from seven- ty-five to one hundred yards. The judge below charged the jurj^ that the railroad company was not liable for the neglect of the en- gineer to keep a lookout along the track, except when he was ap- proaching a crossing of a public road over the railway, and was not responsible for his failure to use the appliances at his com- mand to stop the train, until he actually saw the children asleep on the track, at a distance of twenty -five or thirty yards. This in- struction was sustained by the court in the face of the fact that counsel for the plaintiff cited and relied upon Davies v. Mann, supra, and the court failed, even to advert to the doctrine laid down in that case. It must, therefore, have been the settled pur- pose of this court, when the doctrine of Davies v. Mann was ap- proved, to modify this rule, whenever the point should be plainly presented, and that contingency has never arisen until the present time. We have reiterated the principle that, where an engineer sees a human being walking along or across the track in front of his engine, he has a right to assume without further information that he is a reasonable person, and will step out of the way of harm before the engine reaches him. ilcAdoo v. Railroad Co., 105 N. C. 153, 11 S. E. Rep. 316; Daily v. Railroad Co., supra; Parker V. Railroad Co., 86 N. C. 221. It is not negligence in an engineer to act, in the absence of specific information, on the presumption that a man who is apparently awake and is moving, is in full possession of all of his senses and faculties. But it has been re- peatedly held by this court that it is the duty of an engineer, while running an engine, to keep a careful outlook along the track in Sec. 0.] PERSONAL SECURITY, LTBERTY, ETC. 401 order to avoid or avert danger, in ease he shall discover any ob- struction in his front, whether at a crossing or elsewhere. Bul- lock V. Railroad Co., supra; Carlton v. Railroad Co., supra; "Wil- son V. Railroad Co., supra. If the engineer discover, or by rea- sonable watchfulness may discover, a person lying upon the track asleep, or badly intoxicated, or see a human being who is known by him to be insane, or otherwise insensible to danger, or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it. Railroad Co. v. Miller, 25 Mieh. 279 ; Railroad Co. v. St. John, 5 Sneed, 524 ; Railroad Co. v. Smith, 52 Tex. 178; Isbell v. Railroad Co., 27 Conn. 393; Meeks v. Railroad Co., 56 Cal. 513. For similar reasons we have held that the test of negligence, where live stock are killed or injured by a train, is involved in the question whether the engineer, by keeping a proper lookout, could have discovered the animal in time to have pre- vented the injury. Carlton v. Railroad Co. and Wilson v. Rail- road Co., supra. In Bulloek v. Railroad Co. the same criterion was applied, where it was alleged that an engineer might have discov- ered that a wagon was stalled at a crossing in time to prevent in- jury by stopping his train. . . . We think that his honor erred in declaring the testimony in- sufficient in any aspect of it to warrant the inference on the part of the jury that the defendant might have prevented the injurj'^ by the exercise of ordinary care. There must be a new trial. The principal case is approved in Daniel v. R. R., 145 N. C. 51, 58 S. E. 601. The doctrine ot the case is called the doctrine of the "last clear chance," in McLamb v. R. R., 122 N. C. at mid. p. 873, 29 S. B. 894. What are the proper issues to be submitted to the jury when this doctrine arises in a case, is discussed in Baker v. R. R., 118 N. C. at p. 1021, 24 S. B. 415, and Curtis v. R. R., 130 N. C. 437, 41 S. E. 929. See also Pickett V. R. R., 117 N. C. 616, 23 S. E. 264, 30 L. R. A. 257, 52 Pac. 92, 40 L. R. A. 172, 7 L. R. A. (N. S.) 132, 17 lb. 707, for further discussion of the doctrine of the last clear chance. See "Railroads," Century Dig. §§ 1324, 1325; Decennial and Am. Dig. Key No. Series § 390. MITCHELL V. ROCHESTER R. CO., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781. 1896. Actions for Fright Caused ty Negligence. [Plaintiff, Annie Mitchell, sued to recover damages caused by the al- leged negligence of the defendant. Judgment against defendant. De- fendant appealed. Reversed. The evidence tended to prove tbat the plaintiff came near to being run over in the street by the defendant's team; that the defendant was negligent; that the plaintiff was greatly frightened and suffered a mis- carriage in consequence of such fright — that the mental shock she re- ceived produced the miscarriage and attendant illness.] Martin, J. . . . Assuming that the evidence tended to show that the defendant's servant was negligent in the manage- Remedies — 26. 402 PERSONAL SECURITY, LIBERTY, ETC. [CJl. o . ment of the car and horses, and that the plaintiff was free from contributory negligence, the single question presented is whether the plaintiff is entitled to recover for the defendant's negligence which occasioned her fright and alarm, and resulted in the injuries already mentioned. "While the authorities are not harmonious upon this question, we think the most reliable and better-consid- ered eases, as well as public policy, fully justify us in holding that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury. Lehman v. Railroad Co., 47 Hun, 355 ; Commissioners v. Coultas, 13 App. Cas. 222 ; Ewing V. Railway Co., 147 Pa. St. 40, 23 Atl. 340. The learned counsel for the respondent in his brief very properly stated that ' ' the con- sensus of opinion would seem to be that no recovery can be had for mere fright," as will be readily seen by an examination of the fol- lowing additional authorities: Haile v. Railroad Co., 60 Fed. 557, 9 C. C. A. 134; Joch v. Dankwardt, 85 111. 331 ; Canning v. Inhabit- ants of Williamstown, 1 Cush. 451 ; Telegraph Co. v. Wood, 6 C. C. A. 432, 57 Fed. 471 ; Renner v. Canfield, 36 Minn. 90, 30 N. W. 435 ; Allsop V. AUsop, 5 Hurl. & N. 534 ; Johnson v. Wells Fargo ijj Co., 6 Nev. 224 ; Wyman v. Leavitt, 71 Me. 227. If it be admitted that no recovery can be had for fright occasioned by the negligence of another, it is somewhat difficult to understand how a defendant would be liable for its consequences. Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nerv- ous disease, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of fright, or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury. If not, then there can be no recovery, no matter how grave or serious the consequences. Therefore the logical result of the respondent's concession would seem to be, not only that no re- covery can be had for mere fright, but also that none can be had for injuries which are the direct consequences of it. If the right of re- covery in this class of cases should be once established, it would nat- urally result in a flood of litigation in cases where the injury com- plained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The dif- ficulty which often exists in cases of alleged physical injurj^, in de- termining whether they exist, and, if so, whether they were caused by the negligent act of the defendant, would not only be greatly in- creased, but a wide field would be opened for fictitious or specula- tive claims. To establish such a doctrine would be contrary to principles of public policy. Moreover, it cannot be properly said that the plaintiff's miscarriage was the proximate result of the de- fendant's negligence. Proximate damages are such as are the or- dinary and natural results of the negligence charged, and those that are usual, and may, therefore, be expected. It is quite obvious that the plaintiff's injuries do not fall within the rule as to proxi- Sec. 5.] PERSONAL SECURITY, LIBERTY, KTC. 403 mate damages. The injuries to the plaintiff were plainly the re- sult of an accidental or unusual combination of circumstances, which could not have been reasonably anticipated, and over which the defendant had no control, and hence her damages were too re- mote to justify a recovery in this action. These considerations lead to the conclusion that no recovery can be had for injuries sus- tained by fright occasioned by the negligence of another, where there is no immediate personal injury. The orders of the general and special terms should be reversed, and the order of the trial term granting a nonsxiit affirmed, with costs. For whether or not a recovery can be had although no injury result except that caused by fright, see Nowell v. Whitcher, 53 Vt. 589, and note, inserted at see. 4, ante; Mack v. R. R., 29 S. B. 905, 40 L. R. A. 679. See also on this subject the elaborate note in 3 L. R. A. (N S.) 49, and Armour v. Kollmeyer, 88 C. C. A. 242, 16 L. R. A. (N. S.) 1110. See "Damages," Century Dig. § 1000; Decennial and Am. Dig. Key No. Series § 52. SO RELLE V. WESTERN UNION TEL. CO., 55 Tex. 308, 40 Am. Rep 805. 1881. Mental Anguish Doctrine. [Plaintiff sued for damages resulting from the negligence of defendant in not delivering a telegram which announced the death of the plain- tiff's mother. Judgment against plaintiff. Plaintiff appealed. Reversed. The facts appear in the opinion.] Watts, J. The question presented by the record is as to the lia- bility of a telegraph company for injury resulting to the feelings of a person from the wilful neglect of the agents of the company to transmit and deliver a message announcing the death of such person's mother, and requesting his presence at the funeral, etc. This question results from the ruling of the court below in sus- taining exceptions to the petition. [PACTS.] The allegations contained in the petition are, in ef- fect, that appellant's mother died on the 16th day of January, 1874, near the town of Giddings ; that on that day, W. M. Scallorn, a near relative prepared the message and delivered the same to the company's agent at said town, to be promptly transmitted and de- livered to appellant at Austin, and that the charge for such serv- ice was then paid to such agent; that the agents of this company did not transmit and cause such message to be delivered to appel- ianl within a reasonable time, notwithstanding he was in the city of Austin and at his usual place of business ; but wilfully neglected and failed so to do for several days after the date aforesaid, and that by reason of such wilful neglect and failure he was prevented from being present at the funeral services of his mother and pro- viding for her remains being properly cared for, and from paying to her the last tribute of respect, etc., claiming that he was thereby injured and damaged in the sum of $50,000. Actual damages are either general or special, the former are 404 PERSONAL SECUEITY, LIBERTY, ETC. [Ch. 5. such as naturally result from the act complained of, or which the law implies therefrom, and need not be specially pleaded, but may be recovered under the general averment of damages. 2 Sedg. on Dam. 606. It appears to be the settled rule in this state, that in- jury to the feelings, caused by the wilful neglect or fault of an- other, constitutes such actual damages for which a recovery may be had. Hays v. H. & G. N. E. Co., 46 Tex. 279 ; H. & G. N. R. Co. v. Randall, 50 Tex. 261. In the last edition of Shearman & Redfield on Negligence, after fully considering the measure of damages, etc., in telegraph eases, the authors give it as their opinion, that "in case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or do- mestic matters, we do not think that the company in fault ought to escape with mere nominal damages, on account of the want of strict commercial value in such messages. Delay in the announce- ment of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot be easily estimated in money, but for which a jury should be at liberty to award fair damages. ' ' It appears to us that the natural consequences of a failure to promptly transmit and deliver a message like that in this case, and under the circumstances shown in appellant's petition, is to pro- duce the keenest sense of grief incident to a disappointment. For it is a principle of our nature, implanted in the bosom of every reasonable being not devoid of human sensibilities, to promptly pay the last tribute of respect to the mother who bore and fostered us. And to be thwarted in the discharge of this duty, prompted as it is by natural desire, by the wilful fault or neglect of one whose business it is to communicate the news, and who has received his compensation therefor, in the very nature of things is calcu- lated to, and will inflict upon the mind the sorest sum of disap- pointment and sorrow. This being the natural result of such neg- lect, the damages resulting therefrom are general, as contradistin- guished from special damages, and may be recovered under the general averment of damages. In the case of Phillips v. Hnyle. 4 Gray, 568, it was held that injury to the feelings of a parent in consequence of the seduction of his daughter constituted general damages naturally resiilting from the act, and need not be spe- cially pleaded. A similar doctrine is asserted by the Supreme Court of the United States, in the case of Roberts v. Graham, 6 Wall. 578. This being the natural result of such neglect, it must be held to .have been contemplated by the company when its agent received the message, and agreed, for a compensation then paid, to promptly transmit and cause the same to be delivered. For all the importance that the message imports is fairly shown in its terms. Telegraph companies exercise and enjoy special franchises and privileges under the law ; the very piirpose of their, organization is to furnish for compensation the means of rapid and prompt eommuncation ; its use is expensive, and is rarely resorted to except Sec. 5.] PERSONAL SECDBXTY, LIBERTY, ETC. 405 in matters of importance to the parties. Hence the resort to this mode of transmitting information should of itself be held suffi- cient notice to the company's agents, that, as between the sender and the party to whom sent, the message is deemed to be of some importance, imless the contrary is made known by strict informa- tion or strong implication, as time is the usual consideration that prompts the parties to the use of the wire. The law will not permit any one to impose with impunity upon another, by his wilful fault or neglect, such injury to his feelings as is the natural result from the disappointment shown by the allega- tions of appellant's petition, and then protect himself under the plea of damnum absque injuria. Injury to the feelings, resulting from such disappointment, in our opinion constitutes general dam- ages, recoverable under a general averment of damage ; and the court erred in sustaining the exceptions to appellant's petition. It should be remarked that great caution ought to be observed in the trial of cases like this ; as it will be so easy and natural to con- found the corroding grief occasioned by the loss of the parent or other relative with the disappointment and regret occasioned by the fault or neglect of the company; for it is only the latter for which a recovery may be had; and the attention of juries might well be called to that fact. It is our conclusion that the proper disposition of this appeal is to reverse the judgment and remand the case. Reversed. For authorities sustaining the doctrine of the principal case, see Young V. Tel. Co., 107 N. C. 370, 11 S. E. 1044; Green v. Tel. Co., 136 N. C. 489, 49 S. E. 165. For the opposite ruling, see "West. Un. Tel. Co. v. Ferguson, 157 Ind. 64, 60 N. E. 674, where all the authorities on the sub- ject are cited in the opinion and dissenting opinion, and 43 S. W. 965, 39 L. R. A. 463. Green v. Tel. Co., supra, reviews all the cases, by states. See also 8 U R. A. (N. S.) 249, 11 lb. 497, 12 lb. 886. 14 lb. 499, 927, 15 lb. 277, 19 lb. 374, 475, 575, 23 lb. 648, and notes (in telegram cases); 12 lb. 184, and notes (expulsion of passenger from vehicle); 3 lb. 225, and note (loss of intended bride's trunk); 6 lb. 883, and note (mutilation of corpse); 2 lb. 898, 7 lb. 518, and notes (of parents for injury or death of child); 14 lb. 1242, and note (exclusion from place of amusement) ; 16 lb. 674, and note (of husband in cases of crim. con.); 17 lb. 594, and note (injury to pregnant woman); 13 lb. 159, and note (verbal abuse of pas- senger); 19 lb. 409, and note (how proven); 19 lb. 500, and note (on account of another's sufferings) ; 19 lb. 564, and note (for breach of con- tract to transport a corpse) ; 19 lb. 575, and note (failure of telegraph company to transmit money for preparing a corpse for burial) ; 15 lb. 775, and note (contemplation of mutilated corpse); 20 lb. 458, and note (passenger's apprehension of consumption from sitting in a cold recep- tion room at a railroad station). See "Telegraphs and Telephones," Century Dig. §§ 55, 69, 70; Decennial and Am. Dig. Key No. Series i§ 65, 68. 406 PEESONAL SECURITY, LIBERTY, ETC. [CIl. Sec. 6. Injuries to Health. Injuries affecting a man's health are wrongs or injuries unac- companied by force, for which there is a remedy in damages by special action on the case. 3 BIk. *122. STORY V. HAMMOND, 4 Ohio, 376. 1831. Sickness of an Individual Caused ty a Public Nuisance. [Action on the case to recover special damages sustained by the plain- tiff in consequence of defendant's mill pond. Verdict against defendant. Defendant moved for a new trial, and it is upon that motion the opinion is written. The motion was overruled. The facts appear in the opinion.] By the Court. . No other evidence was admitted on the trial than to show the sickness of the plaintiff, and that of his wife and children whom he was bound to support. It appeared upon the trial, that not only the plaintiff and his family, but the neighborhood, generally, suffered much sickness and disease, oc- casioned by the defendant's milldam, and it is insisted that this general injury is a legal bar to the recovery of individual damages. We consider it unnecessary to determine whether the injury com- plained of belongs to the class of public or private nuisances, as defined by the common law. Every member of society is bound, by the principles of natural justice, so to use his own property as not to injure the rights of others. If an individual erects a mill- dam which creates disease and sickness, he must be responsible for the consequences. The defense set up is entirely without foundation. If a man were to sally forth into the public streets of a town and commit an assault and battery upon every person he met, it would hardly be competent for him, in a suit by an individual for special damages, to set up as a defense that he had not only beat the plaintiff, but had also beat the whole town. Or, if a man were to poison a reser- voir of water, for the supply of a city, and thereby create a general sickness among the inhabitants, it would not be seriously con- tended that the magnitude of the offense was a bar to a private action; or, in other words, that the defendant might exculpate himself by proving that he had not only poisoned the plaintiff, but had poisoned all the inhabitants of the city. There is no founda- tion in the objection that the civil action was merged in the indict- ment. In England, actions of trespass or tort, in certain cases, were held to be merged in the felony. But this rule, it seems, did not operate after the offender was brought to justice. 1 Bac. Abr. 99 ; 4 Term, 333. Motion overruled. For instances of recovery in cases similar to the principal case, see Downs V. High Point, 115 N. C. 182, 20 S. E. 385; McManus v. R. R., 150 N. C. 655, 64 S. E. 766. See eh. 3, sec. 12. See "Nuisance," Century Dig. §§ 164-169, 185; Decennial and Am. Dig. Key No. Series §§ 72, 76. ISCC. 6.\ PERSONAL SECURITY, LIBERTY', ETC. 407 STATE V, MONROE, 121 N. C. 677, 28 S. B. 547, 43 L. R. A. 861. 1897. Administering Croton Oil in Jest. [Indictment for assault and battery. Defendant convicted, and he ap- pealed. Affirmed. The defendant sold a drop of croton oil to a cus- tomer knowing that it was to be administered to another in jest.] Faircloth, C. J. Will Horn administered to Ernest Barrett a dose of croton oil, and the oil had an injurious effect on Barrett. Defendant admits he sold the oil to Horn, and at his request dropped it into a piece of candy, but says he did not know that these parties were playing practical jokes on each other, and did not know for what purpose Horn wanted the oil. Another witness testified that defendant said that Horn said he wanted the oil ' ' for a fellow. ' ' Defendant denied saying this. Another witness testi- fied to the quinine episode, and to Barrett 's and Horn 's tricks with each other. Defendant testified that he knew that a day or two before Horn had given Barrett a dose of quinine as a joke, in lem- onade. There were other witnesses on these matters. Defendant is indicted for an assault on Barrett. If guilty, he must be so as a principal, not as an accessory. His guilt, then, depends upon whether he knew, or had reason to believe, that the dose was in- tended for Barrett or some other person as a trick, and not for medicinal purposes. The whole evidence was submitted to the jury, who rendered a verdict of guilty. His honor instructed the jury that when the defendant sold the oil, if he "knew or had every reason to believe, and did believe, that it was intended for Barrett or some other person by way of a trick or a joke, and not for a medicinal purpose, the defendant would be guilty of assault and battery. ' ' He also charged that it was not necessary that it should be a poisonous or deadly dose ; that it was sufficient if it was an unusual dose, likely to produce serious injury. To this instruc- tion we see no objection, and we think it covers the substance of the defendant's prayers proper to go to the jury. There was no exception to the evidence. For duties of druggists, see Code, §§ 3143-3145. Affirmed. See 13 L. R. A. (N. S.) 646, and note. See "Assault and Battery," Cen- tury Dig. §§ 68-74; Decennial and Am. Dig. Key No. Series § 48. BISHOP V. WEBER, 139 Mass. 411, 1 N. E. 154. 1885. Bad Provisions Sold at a Public Function. Want of Privity. [Action of tort for damages resulting from bad provisions furnished by the defendant as caterer at a public ball. Demurrer by defendant sus- tained. Judgment against plaintiff, and he appealed. The complaint alleged: That defendant was employed to act as caterer at a public ball and did act as such; that plaintiff was rightfully at the ball and bought from the defendant, and paid therefor, certain provisions which made the plaintiff sick; that the food was unwholesome, improperly and negligently prepared, poisonous, dangerous, and unfit to be eaten. The 408 PERSONAL SECURITY, LIBERTY, ETC. [CJl. 5. principal ground of demurrer was, that the complaint failed to allege any duty or relation of the defendant to the plaintiff for the breach of which the plaintiff's action would lie; that it failed to allege any wrongful act or omission of duty by the defendant for which he could be held liable to the plaintiff.] Allen, J. If one who holds himself out to the public as a ca- terer, skilled in providing and preparing food for entertainments, is employed as such by those who arrange for an entertainment, to furnish food and drink for all who may attend it, and if he under- takes to perform the services accordingly, he stands in such a rela- tion of duty towards a person who lawfully attends the entertain- ment and partakes of the food furnished by him as to be liable to an action of tort for negligence in furnishing unwholesome food whereby such person is injured. The liability does not rest so much upon an implied contract as upon a violation or neglect of a duty voluntarily assumed. Indeed, where the guests are enter- tained without pay, it would be hard to establish an implied con- tract with each individual. The duty, however, arises from the re- lation of the caterer to the guests. The latter have the right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any privity of contract between the parties. Norton v. Sewall, 106 Mass. 144; Longmeid v. HoUiday, 6 Exch. 767; Pippin v. Sheppard, 11 Price, 400. The plaintiff's action was originally entitled "in an action of tort. ' ' The plaintiff obtained leave to amend by adding the words ' ' or contract, the plaintiff being doubtful to which class of actions this action belongs. ' ' This amendment was unnecessary, and may be disregarded, all the amended counts upon which the plaintiff relies being in tort. It is not necessary to sustain the demurrer on account of the lack of literal precision in entitling the action. The defendant relies on several other extremely fine points of objection, but, without dwelling on them in detail, it may be said in general terms that the several counts sufficiently set forth the facts from which the duty of the defendant towards the plaintiff springs, and it is not necessary to state, formally and in terms, that the defendant occupied such a relation towards the plaintiff that the law cast upon him the duty. They also sufficiently aver that the defendant neglected that duty, and that the plaintiff was injured by reason thereof. It is not necessary to aver that the de- fendant knew of the injvirious quality of the food. It is sufficient if it appear that he ought to have known of it, and was negligent in furnishing unwholesome food, by rea.son of which the plaintiff was injured. Judgment reversed. See "Pood," Century Dig. § 18; Decennial and Am. Dig. Key No. Series § 25. Sec. 6.] PERSONAL SECURITY, LIBERTY, ETC. 409 WELLINGTON v. DOWNER KEROSENE OIL CO., 104 Mass. 64. 1870. Liability of Wholesaler to Consumer, for Dangerous Commodities. Want of Privity. Duty to the Public. LTort for injury to plaintiff's person and property by the explosion o£ a lamp. Verdict and judgment against plaintiff. Plaintiff excepted and appealed. Exceptions sustained. Tlie plaintiff sued upon two counts: (1) That defendant sold a barrel of naphtha to a retail dealer contrary to the provisions of a statute; that the retailer sold to plaintiff some of the naphtha under the name of oil for illuminating purposes; that the naphtha exploded a lamp and injured plaintiff's person and property; (2) That defendant was a manufacturer and dealer in oils, and, knowing that Chase was a retailer of illuminating oils, sold to him a barrel of dangerous fluid for the purpose of being re- tailed to consumers for burning in lamps; that the defendant knew of the dangerous character of the fluid, but that Chase did not; that plain- tiff purchased from Chase and was injured, etc. The question presented is: As the plaintiff did not buy the oil from the defendant and had no dealings whatsoever directly with the defendant in connection with the oil, can the plaintiff maintain this action against the defendant?] Gray, J. This is an action of tort. Both counts of the declara- tion are framed, not upon any supposed privity between the par- ties, but upon a violation of duty in the defendants, resulting in an injury to the plaintiff. The first count is upon the St. of 1867, c. 286, and the second upon the common law'. It will be convenient to consider the general question of the liability of the defendants at common law, before examining the construction and effect of the statute. It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without no- tice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other who is not him- self in fault. Thus a person who delivers a carboj', which he knows to contain nitric acid, to a carrier, without informing him of the nature of its contents, is liable for an injury occasioned by the leaking out of the acid upon another carrier to whom it is de- livered by the first, in the ordinary course of business, to be carried to its destination. Farrant v. Barnes, 11 C. B. (N. S.) 553. So a chemist who sells a bottle of liquid, made up of ingredients known only to himself, representing it to be fit to be used for washing the hair and knowing that it is to be used by purchaser's wife, is liable for an injury occasioned to her by using it for washing her hair. George v. Skivington, L. R. 5 Ex. 1. And a druggist who negli- gently labels a deadly poison as a harmless medicine, and sells iL so labelled to dealers in such articles, is liable for an injury to any one who afterwards purchases and uses it, if there is no negligence on the part of the intermediate sellers or of the person injured. Thomas v. "Winchester, 2 Selden, 397; Davidson v. Nichols, 11 Allen, 519, 520 ; McDonald v. Snelling, 14 Allen, 290, 295. The second count of the declaration expressly avers that the de- fendant sold naphtha to Chase for the purpose of being retailed 4:1U PERSONiiL SECUEITY, LIBERTY, ETC. [C7). J. and resold to be burned in a lamp for illuminating purposes, know- ing it to be explosive and dangerous to life when so used, and knowing Chase 's business to be that of a retailer and his purpose to retail and resell the same to the public to be so used ; that Chase resold a part thereof to the plaintiff to be so sued, and, while he was so using it, it ignited and exploded, and injured his person and property ; and that both Chase and the plaintiff were ignorant of its dangerous qualities. Proof of the facts thus alleged would show that the defendants were guilty of a violation of duty in sell- ing an article which they knew to be explosive and dangerous, for the purpose of being resold in the market, without giving informa- tion of its nature, and were therefore bound to contemplate, as a natural and probable conseqxience of their unlawful act, that it might explode or ignite, and injure an innocent purchaser or his property, and to answer in damages for such a consequence if it should come to pass. The ruling of the learned judge who pre- sided at the trial was therefore erroneous, and the exceptions must be sustained. In Carter v. Towne, 98 !Mass. 567, cited for the defendants, a declaration alleging that the defendants negligently and unlaw- fully sold and delivered gunpowder to the plaintiff, a boj' eight years old, having neither experience nor knowledge in the use of gunpowder, and being an unfit person to be intrusted with it. all of which the defendants well knew, and that the child, in ignorance of its effects, and using that care of which he was capable, ex- ploded the gunpowder and was burned thereby, was held good upon demurrer. In that case, no question was raised of the de- fendants' liability to any other person than the one to whom they delivered the article. The plaintiff was afterward held not en- titled to recover of the defendants, because it appeared that the gunpowder had been carried home by the child, and put in the custody of his parents, and a part of it been fired off by him with their permission, before the explosion by which he was injured ; and as the gunpowder had passed into the custody of adult per- sons who knew its dangerous qualities and had allowed him to u.s? it, and was retaken by the child from their custody, before the acci- dent sued for, the sale by the defendants was not the direct, prox- imate or efficient cause of the injury. S. C, 103 Mass. 507. We cannot accede to the suggestion made by. the counsel for the de- fendants in the ca.se at bar, in opposition to the proof offered at the trial that Chase and the plaintiff must be deemed to have known the dangerous qualities of naphtha. . Exceptions sustained. For similar ruling as to unwholesome provisions and medicines, see 19 L. R, A. (N. S.) 923. and note, 1 lb. 1178. See 2 lb. 303, and note (de- fective tools); 5 lb. 1103 (defective machinery); 13 lb. 382 (dangerous stove polish); 13 lb. 646, and note (druggists' liability to third persons). See "Explosives," Century Dig. § 6; Decennial and Am. Dig. Key No. Series § 9. Sec. 6.] PERSONAL SBCUEITY, LIBERTY, ETC. 411 MINOR V. SHARON, 112 Mass. 477. 1873. Letting a House Infected With Smallpox. [Action of tort for damages sustained from smallpox contracted by occupying a house demised to plaintiff by the defendant. The defend- ant, having knowledge that the house was infected, concealed that fact from the plaintiff who had no knowledge thereof. Verdict and judgment against defendant, and he excepted. The opinion is upon such exceptions, and they are overruled. The facts appear In the opinion.] Morton, J. It must be assumed that the jury found, under the instructions given them, that the defendant, being the owner of a tenement, knowing that it was so infected by the smallpox as to be unfit for occupation and to endanger the health and lives of the occupants, and concealing this knowledge from the plaintiff to in- duce him to hire it, leased it to the plaintiff ; that the plaintiff and his children took the disease by reason of the infection of the tene- ment; that the plaintiff was ignorant of its dangerous condition, and that no negligence of his contributed to their taking the dis- ease. Upon these facts the defendant is guilty of actionable negli- gence, and is liable for whatever injury the plaintiff has sustained by reason thereof. In Sweeney v. Old Colony & Newport R. R. Co., 10 Allen, 368, 372, the rule is stated to be, that "in order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undis- charged or unfulfilled. This is the basis on which the cause of ac- tion rests." Negligence consists in doing or omitting to do an act in violation of a legal duty or obligation. In this case the defend- ant knew that the tenement was so infected as to endanger the health and life of any person who might occupy it. It was a plain duty of humanity on his part to inform the plaintiff of this fact, or to refrain from leasing it until he had used proper means to dis- infect it. If the defendant had invited any person to enter his tenement, knowing that there was a dangerous obstruction or pit- fall in it, he would be liable; the negligence was no less gross be- cause the danger was a secret one which eoiild not be detected by inspection or examination. Carleton v. Franconia Iron & Steel Co., 99 Mass. 216 ; French v. Vining, 102 Mass. 132. The defendant contends that the injury complained of is not of such a nature as to give a right of action, "because in diseases which are usually designated as contagious, the connection between the origin of the disease and the disease itself is not a matter cog- nizable by our senses," and "the source from which and the man- ner in which the contagion is communicated is too uncertain and unsusceptible of proof to form the foundation for an action. ' ' In the trial of cases, as in the ordinary affairs of life, it is often im- possible to establish the connection between cause and effect with absolute certainty. But evidence which produces a moral convic- tion is sufficient. It is upon such convictions that men act in the 412 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. important concerns of life, and no greater certainty is required or attainable in the administration of the law. The defendant 's neg- ligence was an adequate cause of the injury to the plaintiff. The evidence reasonably satisfied the minds of the jury that it was the operating cause, and the defendant cannot escape the consequences of his negligence upon the plea that the connection betM^een cause and effect cannot be proved beyond the possibility of doubt. . . Exceptions overruled. See "Landlord and Tenant," Century Dig. § 636; Decennial and Am. Dig. Key No. Series § 164. SLATER V. BAKER and STAPLETON, 2 Wilson, 359, 362. 1767. Malpractice. [Special action on the case against a surgeon and an apothecary for malpractice. Verdict against defendants, who moved to set the verdict aside. Motion overruled and judgment against defendants. The opinion is on the motion; and only so much of the opinion as discusses the rem- edy is inserted here. Plaintiff employed defendants, Baker being a surgeon and Stapleton an apothecary, "to cure his leg, which had been broken and set, and the callous of the fracture formed." The declaration sets out the contract of employment, and alleges that the defendants "ignorantly and unkilfully treated the plaintiff," In that they unskilfully and ignorantly broke and disunited the callous of the leg after it was set and the callous formed, whereby plaintiff was damaged. Several surgeons testified that the treat- ment was not according to the method of the profession. It was shown that defendants experimented with some new instrument.] Curia. [Wilmot, Lord Chief Justice.] . . It is objected that this is not the proper action, and that it ought to have been trespass vi et armis ; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous with- out consent, this is the usage and law of surgeons ; then it was igno- rance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put him- self in such a situation as to enable him to undergo the operation ; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass vi et armis to be brought for the same dam- age ; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers vi et armis; the court will not look with eagle 's eyes to see whether the evidence applies exactly or not to the case ; when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it- be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their re- Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 413 spective professions as any two gentlemen in England, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons. Judgment for the plaintiff per totam curiam. Under the code practice the action tor malpractice may be in tort or in contract, at the election of the plaintiff. Goble v. Dillon, 86 Ind. at p. 340, which was also a case against two defendants for malpractice in setting a broken leg. For an interesting case of alleged malpractice by a dentist, see McCracken v. Smathers, 122 N. C. 799, 29 S. B. 354, where the question of contributory negligence of the patient is discussed, as well as the degree of skill that the law requires of professional men. See further as to degree of skill required, 97 N. W. 882, 64 L. R. A. 126, and note. The case in 97 N. W. 882, 64 L. R. A. 126, is an interesting one on malpractice in the use of "Roentgen's X-rays," Christian Scientists, etc. There is a conflict of authority as to the liability for malpractice where treatment of disease is undertaken by Christian Scientists, Magnetic Healers, Clairvoyants, etc. See 1 L. R. A. 719; 64 lb. 969; 68 lb. 432. See also 9 L. R. A. (N. S.) 524, 12 lb. 1005, and notes (malpractice of attor- neys at law); 12 lb. 449, 15 lb. 160, and notes (of title abstractors); 20 lb. 1003, 1030, and notes (of physicians and surgeons). See "Physicians and Surgeons," Century Dig. § 31; Decennial and Am. Dig. Key No. Series § 16. Sec. 7. Injuries to Reputation. ' ' Case is the proper remedy ^vhere the right affected is not tan- gible and consequently cannot be affected by force — as reputation and health — the injuries to which are always remediable by action on the case; as libels and verbal slanders." 1 Chitty PI. *137. COMMONWEALTH v. CLAP, 4 Mass. 163, 168. 1808. Criminal Liiel Defined, etc. Justification. Justifi,cable Purpose. [The defendant was Indicted for libel. Verdict of guilty. Motion for a new trial. The opinion is upon this motion. Motion refused. The defendant posted up in several public places the following: "Caleb Hayward is a liar, a scoundrel, a cheat, and a swindler. Don't pull this down." Hayward was an auctioneer. The other facts appear in the be- ginning of the opinion.] Parsons, C. J. The defendant has been convicted, by the ver- dict of a jury, of publishing a libel. On the trial, he moved to give in evidence, in his defense, that the contents of the publication were true. This evidence the judge rejected, and for that reason the defendant moves for a new trial. It is necessary to consider what publication is libellous, and the reason why a libellous publication is an offense against the com- monwealth. A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule. The 414 PERSONAL SECURITY, LIBERTY, ETC. [Ch- 5. cause why libellous publications are offenses against the state, is their direct tendency to a breach of the peace, by provoking the parties injured, and their friends and families, to acts of revenge, which it would not be easy to restrain, were offenses of this kind not severely punished. And every day's experience will justify the law in attributing to libels that tendency which renders the publication of them an offense against the state. The essence of the offense consists in the malice of the publication, or the intent to defame the reputation of another. In the definition of a libel, as an offense against the law, it is not considered whether the publi- cation be true or false ; because a man may maliciously publish the truth against another, with intent to defame his character, and if the publication be true, the tendency of it to inflame the passions, and to excite revenge, is not diminished, but may sometimes be strengthened. The inference is, therefore, very clear, that the de- fendant cannot justify himself for publishing a libel, merely by proving the truth of the publication, and that the direction of the judge was right. If the law admitted the truth of the words in this case to be a justification, the effect would be a greater injury to the party libelled. He is not a party to the prosecution, nor is he put on his defense ; and the evidence at the trial might more cruelly defame his character than the original libel. Although the truth of the words is no justification in a criminal prosecution for libel, yet the defendant may repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man. And there may be cases, where the defendant, having proved the purpose justifi- able, may give in evidence the truth of the words, when such evi- dence will tend to negative the malice and intent to defame. Upon this principle, a man may apply by complaint to the legislature to remove an unworthy officer ; and if the complaint be true, and made with the honest intention of giving useful information, and not maliciously or with intent to defame, the complaint will not be a libel. And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far is it may respect his fitness and qualifications for the office. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel; for it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offense against their laws. And every man holding a public elective office may be considered as within this principle ; for as a re-election is the only way his constituents can manifest their approbation of his conduct, it is to be presumed that he is consenting to a re-election, if he does not disclaim it. For every good man would ^^•ish the approbation of his constituents for meritorious conduct. For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offense most dangerous to the people,, and deserves punishment, because the Sec. 7.] PERSONAL SECUEITY, LIBERTY, ETC. 415 people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties. But the publi- cation of a libel maliciously and A\'ith intent to defame, whether it be true or not, is clearlj^ an offense against law, on sound princi- ples which must be adhered to, so long as the restraint of all ten- dencies to the breach of the public peace, and to private animosity and revenge, is salutary to the commonwealth. The defendant took nothing by his motion, and was afterwards sentenced to two months ' imprisonment, with costs. In North Carolina the defendant may justify when indicted. Rev. sec. 3267. See "Libel and Slander," Century Dig. §§ 402, 414; Decennial and Am. Dig. Key No. Series §§ 141-150. VILLERS V. MONSLEY, 2 Wilson, 403. 1769. Civil Action for LibeJ. Libel and Slander Distinguished. [Action upon the case against the defendant for maliciously writing and publishing a libel upon the plaintiff in the words following, viz.: Old Villers, so strong of brimstone you smell, As it not long since you had got out of hell. But this damnable smell I no longer can bear, Therefore I desire you would come no more here; You old stinking, old nasty, old Itchy old toad. If you come any more, you shall pay for your board. You'll therefore take this as a warning from me. And never more enter the doors, while they belong to J. P." The defendant pleaded not guilty, and a verdict was found for the plaintiff and sixpence damages. The defendant moved in arrest of judg- ment, for that this was not such a libel for which an action would lie.] WiLMOT, Lord C.J. I think this is such a libel for which an ac- tion well lies ; we must take it to have been proved at the trial that it was pviblished by the defendant maliciously ; and if any man de- liberately or maliciously publishes anything in writing concern- ing another which renders him ridiculous, or tends to hinder man- kind from associating or having intercourse with him, an action well lies against such publisher; I see no difference between this and the cases of the leprosy or plague, and it is admitted that an action lies in those cases. The writ de leproso araovendo is not taken away, although the distemper is almost driven away by cleanliness, or new invented remedies ; the party must have the dis- temper to such a degree before the writ shall be granted, which commands the sheriff to remove him without delay ad locum foli- tarium ad habitandum ibidem prout moris est, ne per communem. conversationem suam hominibus damnum vel periculum eveniat quovismodo. The degree of leprosy is not material, if you say he has the leprosy it is sufficient, and the action lies ; the reason of that case applies to this; I do not know whether the itch may not be communicated by the air without contact, it is said to be occasioned by animalcula in the skin, and must be cured by outward applica- 416 PERSONAL SECURITY, LIBERTY, ETC. [Gh. 5. tion; nobody -will eat, drink, or have intercourse with a person who has the itch and stinks of brimstone, therefore I think this libel actionable, and that judgment must be for the plaintiff. Gould, J. "What my Brother Bathrust has said is very material here ; there is a distinction between libels and words : a libel is pun- ishable both criminally and by action, when speaking the words would not be punishable in either way; for speaking the words rogue or rascal of any one, action will not lie ; but if those words were written and published of any one, I doubt not an action would lie ; if one should say of another that he has the itch, without more, an action would not lie ; but if he should write those words of an- other, and publish them maliciously, as in the present case, I have no doubt at all but the action well lies. What is the reason why saying a man has the leprosy or plague is actionable? It is be- cause the having of either cuts a man off from society. So the writing and publishing maliciously that a man has the itch and stinks of brimestone cuts him off from society. I think the pub- lishing anything of a man that renders him ridiculous is a libel and actionable, and in the present case I am of opinion for the plaintiff. Judgment for the plaintiff per tot ' cur. without granting any rule to show cause. As to what publications are libelous, see 66 L. R. A. 266, and note (calling a man a eunuch or a woman a hermaphrodite); 6 L. R. A. (N. S.) 919, and note (publishing the photograph of A as that of B, in an article imputing a crime to B) ; 7 lb. 274, and note (placing photograph of an accused but unconvicted person in "Rogue's Gallery"). See "Libel and Slander," Century Dig. §§ 3-90; Decennial and Am. Dig. Key No. Series §§ 6-10. SHAFER V. AHALT, 48 Md. 171, 30 Am. Rep. 456. 1877. Slander of Women Tjy Imputations of VncTiastity, when Not Actionaile per se. [Action by husband and wife for the slander of the wife by charging her with adultery. Verdict and judgment against the defendant, and he appealed. Reversed. The question presented is: Can damages be re- covered for orally charging a woman with adultery in the absence of proof of actual damage resulting from such slander? In other words, is such a charge actionable per se?] Robinson, J. In suits for slander, pecuniary loss to the plain- tiff is the gist of the action. Whether it was necessary at first to prove in all cases such pecuniary loss, it is not now necessary to in- quire. The courts, at an early time, recognized a distinction be- tween words actionable, and words not actionable in themselves. In the former, the law presumed pecuniary loss, while in the latter, it was necessary, in addition to the words, to prove special damage to the plaintiff. Whatever difficulty there may be in defining the precise line of. demarcation between these actions, it is well settled, that where one charges another with the commission of an offense. Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 417 it must be such an offense as subjects the party to corporal pun- ishment, in order to render the words actionable per se. Now, adultery was a spiritual offense cognizable by the spiritual courts, and the punishment was confined to the infliction of pen- ance, "pro salute animae." And hence it was held that to charge one with adultery was not actionable per se, and in order to main- tain the action, the plaintiff must prove special damage. In this state, adultery is made punishable by a pecuniary fine, and to charge one with the commission of the offense is not therefore ac- tionable per se. This is a suit by the husband and wife to recover damages of the defendant for charging the plaintiff's wife with adultery, and the question is, whether the sickness of the wife resulting from this slanderous charge is sufficient to prove special damage. In cases of this kind special damage is that which is naturally the conse- quence of the words spoken. Allsop v. Allsop, 2 L. T. E. (N. S.) 290. Now it cannot be said that sickness is the natural conse- quence of defamatory or slanderous words. Such might or might not be the result, depending in a great measure upon the sensibili- ties and temperament of the person. The rule of law in regard to special damage was adopted with reference to common and usual effects and not such as are occasional and accidental. And hence in Allsop V. Allsop, above referred to, the defendant said that the plaintiff 's wife had committed adultery with him, and the declara- tion alleged that in consequence of said charge, the wife became and was ill for a long time and unable to attend to her business, and the plaintiff was put to and incurred much expense in and about the endeavoring to cure her of her illness, and it was held, upon demurrer that the declaration disclosed no cause of action. Pollock, C. B., said: "I can find no authority, nor has any been eited in the history of the law of this country, for any such special damage as that stated in this ease, being made the ground of an action, or to make actionable that which otherwise would not be so. The important distinction in this case, although not the only one, is, that the mischief done depends entirely on the tempera- ment of the individual affected by the words spoken, whether any damage would result or not. ' ' Martin, B. "The special damage is that which is naturally the consequence of the act done, and the peculiar temperament of the party injured would be a bad standard by which to estimate dam- age." Bramwell, B., and "Wilde. B., were of the same opinion. See also Terwilliger v. Wands, 17 N. Y. 54, and "Wilson v. Goit, Id. 442, where the question was considered and decided as in Allsop V. Allsop. . Judgment reversed. See "Libel and Slander," Century Dig. §§ 18, 72, 97; Decennial and Am. Dig. Key No. Series §§ 7, 12. Remedies — 27. 418 PERSONAL SECURITY, LIBERTY, ETC. [CIl. 5. BOIS V. BOIS, 1 Levinz, 134. 1665. Slander of Women iy Imputations of Unchastity. When Actionable per se. Case for calling a widow, who held an estate while sole and chaste, whore, falsely and maliciously, with intent to oust her of her estate, and saying he would oust her thereof; and at another time calling her whore. After verdict for the plaintiff on the issue not guilty, it was moved in arrest of judgment, that no special damage being laid, the words were not actionable : But by the court, they import damage in themselves in this case, in respect of her estate; as for calling a man a thief, an action lies without special damage, because the words import it in themselves. But for the last words spoken at another time, which are not action- able in themselves, and the damage being entire, the judgment was therefore stayed till the matter be examined, whether the damages were given entirely or not. For on Lhe bad? of the writ where the damages are entered, there seemed to have been some alteration. In Pollard v. Lyon, 91 U. S. 225, is an exhaustive discussion of the law governing both oral and written imputations of unchasteness to women, married and single. The decision with regard to oral slanders of this kind is: (1) Unless there is some statute rendering fornication, adultery, etc., by women, a crime, oral slanders of this kind are not actionable per se; (2) In actions for such slanders there must be allegation and proof of special loss or injury sustained by the plaintiff. A declaration or complaint which merely alleges that the plaintiff "has been damaged and injured in her name and fame," is not good on a motion in arrest of judgment. For the crime of slandering an innocent woman in North Carolina, see Pell's Revisal, sec. 3640, and notes. "Where there is merely an accusation of immorality, in words which might be spoken of any one, whether having any particular occupation or not, it has been held that a charge of special damages, from loss of cus- tom or society, must include the names of those who have cut off from the plaintiff in consequence of the imputation. This rule has not been strictly held in cases where the accusation has been made for the express purpose of injuring the plaintiff in his trade or profession and has had that effect; and in various cases and for different reasons the rule in such cases has been relaxed and a general averment of loss of customers has been held sufficient. Evans v. Harries, 1 H. & N. 251; Riding v. Smith, 1 Ex. D. 91; Clark v. Morgan, 38 L. T. (N. S.) 354; Hapwood v. Thorn, 8 C. B. 293, 308, 309; "Weiss v. Whittemore, 28 Mich. 366; Trenton Ins. Co. v.. Perrine, 3 Zab. 402, 415. See also Hargrave v. Le Breton, 4 Burr. 2422; Hartley v. Herring, 8 T. R. 130." Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74. See 4 L. R. A. (N. S.) 560. See "Libel and Slan- der," Century Dig. §§ 71-78; Decennial and Am. Dig, Key No. Series § 7. SKINNER V. WHITE, 18 N. C. 471. 1836. Words which Are and Are Not Actionable per se. [Action of slander. Verdict for plaintiff subject to the opinion of the court. The judge ruled that the words were not actionable per se, and there was judgment against the plaintiff, and he appealed. Affirmed. The facts appear in the beginning of the opinion. 1 Sec. 7.] PERSONAL SECURlTif, LIBERTY, ETC. 419 Daniel, J. An act of Assembly passed in the year 1821 (Tay- lor's Rev. ch. 1120), declares, that if any person shall harbor or maintain any runaway slave, such person shall be subject to in- dictment for such offense, and being convicted, shall be fined not exceeding $100, and be imprisoned not exceeding six months. The declaration states, that the defendant said of the plaintiff, that "he harbored a runaway negro belonging to Jonathan Reddick; and he could prove it; and he should be prosecuted for it." The question is, whether the words spoken are slanderous, and in them- selves actionable. From the contradictory decisions in England, it is not easy to say what is now the rule to determine what words are actionable of themselves, and what not. In Ogden v. Turner, 2 Salk. 696, Lord Holt said, to render words actionable, it is not sufficient that the party may be fined and imprisoned for the of- fense, if true; for, says he, there must not only be imprisonment, but an infamous punishment. This decision, which seemed to es- tablish a fixed rule, was shaken and materially contradicted by what fell from De Gre}', Chief Justice, in giving judgment in the case of Onslow v. Home, 3 Wils. 177. Mr. Starkie, in his Treatise on Slander, p. 41, says, from all the British authorities, perhaps, it may be inferred generally, that to impute any crime or misde- meanor for which corporal punishment may be inflicted in a tem- poral court, is actionable without proof of special damage. Any objection to the extent of the above rule, he says, is in a great meas- ure obviated by the statute, which enacts that when the damage does not amount to forty shillings, the costs shall be limited to the amount of the damages. In Chitty's Gen. Prac. 44, the same rule appears to be laid down. He, in classing slanderous words, says, "nor can any action be supported, unless the words either, first, impute the guilt of some temporal offense, for which the part}"" slandered, if guilty, might be indicted and punished in the tem- poral courts, and which words are technically said to endanger a man in law : " he then proceeds to give the other classes of slander, which are not applicable to this case. The rule, as to the extent of words actionable in themselves, has never been carried in this country as far as the above respectable common-place authors state it to be in England. In several of the states, it seems to be, that where the charge, if true, will subject the party to an indictment involving moral turpitude, or subject him to an infamous punish- ment, then the icords are actionahle in themselves, otherwise not. Brooker v. Coffin, 5 Johns. 188; Widrig v. Oyer, 13 Johns. 124; 2 Bibb, 473 ; Shaffer v. Kintzer, 1 Binn. 542 ; Ross v. McClurg, Id. 218; Chapman v, Gillett. 2 Conn. 51. In Andreas v. Hoppen- heaffer, 3 Serg. & Rawle, 255, the judges concurred in opinion, that it must be either a felony, or a misdemeanor affecting reputa- tion, and, therefore, to charge a man with having committed an assault and battery, a nuisance, or the offense of forcible entrj^ and detainer, though the party would be subject to indictment and imprisonment, would not be actionable. See also 19 Johns. 367. In Shipp V. McCraw. 7 N. C. 466. it was held, that the gravamen 420 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. in an action of slander is the social degradation arising from the imputation of an infamous oifense, and the infamy of the offense is tested by that of the punishment which follows on conviction — the loss of the libera lex : no other degradation will give an action, for no other degradation is a social loss. In Brady v. "Wilson, 11 N. C. 94, the court said, "inasmuch as the words did not impute to the plaintiff any felony or other crime, the temporal penalty of which would be legally infamous, the action could not be sup- ported." In the other states, when the courts say, the words are actionable if they subject the party to indictment and infamous punishment, provided they be true, we clearly understand what is the extent of the rule; but when they go further to say, "or sub- ject the party to an indictment involving moral turpitude," we are left in doubt what charges are embraced within the sentence — it lacks precision; we are compelled to search moral and ethical authors, rather than legal writers, in order to ascertain whether the case made be within the rule. It seems to us, that the rule laid down by Lord Holt, thai the words, if true, must not only subject the party to imprisonment, hut an infamous punishment, is the set- tled rule of law in this state. The rule being thus precisely de- fined, gentlemen of the profession can never be at a loss how to ad- vise their clients, nor can a judge be at a loss how to charge the jury. In this ease, the charge made by the defendant impoited an offense punishable with fine and imprisonment ; but the judgment would not render the person guilty of such an offense, infamous. He still would retain his liberam legem, and belong to the boni et legales homines of society, which appears to be the test by which to ascertain whether words of this class be actionable or not. The judgment must be affirmed. "Words are held to be actionable per se, which convey an Imputation upon one in the way of his profession or occupation. In such cases there need be no averment of special damages." Morasse v. Brochu, 151 Mass. at mid. p. 575, 25 N. E. 74. It is sometimes said that words not defama- tory, though malicious and false and uttered with intent to Injure one, will not support an action, even though the words were calculated to cause damage and do, in fact, have that effect. But the better rule is, that such an imputation, whether defamatory or not, will support an ac- tion under the above circumstances. Such words may not support a technical action of slander, but they will support an action of some kind — the name of the action is of no consequence. To illustrate: To call a man a dissenter is not defamatory; hut to do so in a small prejudiced community, with intent to injure his trade, is actionable if such injury results therefrom. Ibid, at p. 574. For what words are and are not actionable, see 2 L. R. A. (N. S.) 691, 3 lb. 1139, and notes (charging public ofRcials, witnesses, and others, with bribery and accepting bribes); 5 lb. 498, 15 lb. 497, and notes (charging public official with "graft"); 2 lb. 741, 3 lb. 339, 4 lb. 973, 977, 8 lb. 783, and notes (words damaging to credit and business; and black-list- ing); 4 lb.. 861, and note (pseudo praise and irony); 18 lb. 622, and note (matter capable of a double meaning). For actions by and against a corporation for libel and slander, see 2 L. R. A. (N. S.) 741, 21 lb. 873. For liability of an editor for a libel published without his knowledge, see 10 lb. 332. For liability of telegraph company for sending a libelous mes- sage, see 9 Ih. 140. See "Libel and Slander," Century Dig. §§ 10, 19; De- cennial and Am. Dig. Key No. Series §§ 6, 7. Sec. 7.] PERSONAL, SECURITY, LIBERTY, ETC. 421 WATSON V. TRASK, 6 Ohio, 532. 1834. When Damage Must, and Need Not, &e Shown. [Action for libel. Verdict for plaintiff. Defendant moved in arrest of judgment, and upon that motion the opinion is written. Motion overruled and judgment against the defendant. The plaintiff manufactured and sold bark mills. The defendant published a notice to the effect that plain- tiff was guilty of infringing upon another's patent, in making and selling bark mills. Infringing upon a patent is indictable.] Wright, J. Where one, falsely and maliciously, orally charges another with anything involving moral turpitude, which, if true, will subject him to infamous punishment, or that tends to exclude him from society, or to prejudice him in his office, profession, trade, or business, the parties accused may seek redress by a suit in slander, and recover without proof of actual damage. Where the words are false, the law infers malice, and where their natural tendency is to injure, the law presumes damages. 6 Bac. Abr. 205 ; Starkie on Slander, 11, 12, 100-110 ; 5 Johns. 188, 476 ; 17 Johns. 217. Where the slander is written and published, it is denominated libel. A libel in reference to individual injury may be defined to be a false and malicious publication against an individual, either in print or writing, or by pictures, with intent to injure his reputation, and expose him to public hatred, contempt, or ridicule. 4 Mass. 163 ; 3 Johns. Gas. 354 ; 9 Johns. 214. Whatever charge will sustain a suit for slander where the words are merely spoken, will sustain a suit for libel, if they are written or printed and pub- lished, and it will be seen, at one glance, that many charges, which, if merely spoken of another, would not sustain a suit for slander, will, if written or printed and published, sustain a suit for libel. Words of ridicule only, or of contempt, which merely tend to lessen a man in public esteem, or to wound his feelings, will support a suit for libel, because of their being embodied in a more perma- nent and enduring form ; of the increased deliberation and malig- nity of their publication, and of their tendency to provoke breaches of the public peace. This we understand to be the settled law of libel in this state, sustained by the uniform decisions of our courts, without a single exception within our knoweldge. Subject the publication in question to the test of the definitions given. The publication is declared to be of the plaintiff in his business of maker and vender of bark mills. It imputes to him the infraction of another's patent. This, if true, would subject him, and those purchasing and using his mills, to prosecution. Nothing could have a more direct tendency to the entire destruction of his business. It denies the plaintiff's right to deal in the subject of his occupation, and asserts an adverse inconsistent right which he knew and acknowledged. It thus imputes to him falsehood, fraud, the want of capacity to confer a legal right by the sale of his man- ufactures. It does not stop here. It asserts, moreover, in direct terms, that he perseveres in this fraudulent and pirating trade upon the right of the Trasks, because he is " shielded from prosecu- 422 PERSONAL SECURITY, LIBERTY, ETC. [Gil. :~). tion by his want of responsibility." If irresponsible to the in- ventor whose right he was charged with infringing, he was equally so to those who should purchase of him. The charge is, if you deal with this man you incur the risk of lawsuits for violating the rights of others, and he is insolvent, irresponsible to indemnify. "Would not such a charge, if true, blacken a man's reputation, injure his business, expose him to hatred and contempt ? In our understand- ing, the publication is unequivocally libelous. . . Mailing a postal card on which libellous matter is written, is action- able. Logan V. Hodges, 146 N. C. 38, 59 S. E. 349. See "Libel and Slander," Century Dig. §§ 80-90; Decennial and Am. Dig. Key No. Series § 9. RAMSEY V. CHEEK, 109 N. C. 270, 13 S. E. 775. 1891. Privileged Communications. Absohite and Qualified Privilege. Malice. [Action for libel. In deference to an intimation of the judge, the plaintiff submitted to a nonsuit and appealed. Reversed. The alleged libel consisted of a letter written by defendant to the superintendent of the United States census, in which letter the character of the plaintiff was attacked. The answer admits that defendant sent the letter, and that his object in so doing was to secure the removal of the plaintiff from office. Plaintiff offered evidence tending to show that the charges against him were untrue, and that his character was good; but the only proof of defendant's express malice was the letter itself. Defend- ant insisted that the letter was a privileged communication, and that plaintiff could not recover unless he proved express malice, which, he contended, the plaintiff had failed to do. The plaintiff insisted that the letter itself was evidence of express malice. The substance of the letter and other facts appear in the opinion. 1 Clark, J. The words used charged the plaintiff with an indict- able offense, and also were calculated to disparage him in his of- fice. They were actionable per se. The defendant introduced no evidence, neither to prove the truth of the allegations, nor to show that he had written the letter for an honest, bona fide purpose; but contended that the letter was a privileged communication, and that the burden was on the plaintiff to show express malice, which he had failed to do. The court being of opinion with the defend- ant, the plaintiff took a nonsuit and appealed. Ordinarily, in libel and slander, if the words are actionable per se, the law presumes malice, and the burden is on the defendant to show that the charge is true. It is otherwise if the communication is privileged. Privi- leged communications are of two kinds: (1) Absolutely privi- leged, — which are restricted to cases in which it is so much to the public interests that the defendant should speak out his mind fully and freely that all actions in respect to the words used are abso- lutely forbidden, even though it be alleged that they were used falsely, knowingly, and with express malice. This complete innnu- nity obtains only where the public service or the due administra- tion of justice requires it, e. g., words used in debate in congress and the state legislatures, reports of military or other officers to Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 423 their superiors in the line of their duty, everything said by a judge on the bench, by a. witness in the box, and the like. In these cases the action is absolutely barred. 13 Amer. & Eng. Enc. Law, 406. (2) Qualified privilege. In less important matters, where the pub- lic interest does not require such absolute immimity, the plain- tiff will recover in spite of the privilege if he can prove that the words were not used bona fide, but that the defendant used the privileged occasion artfully and knowingly to falsely defame the plaintiff. Odger, Sland. & L. 184. In this class of cases an action will lie only where the party is guilty of falsehood and express mal- ice. 13 Amer. & Eng. Enc. Law, supra. Express malice is malico in fact, as distinguished from implied malice, which is raised as a matter of law by the use of words libelous per se, when the occasion is not privileged. Whether the occasion is privileged is a question of law for the court, subject to review, and not for the jury, un- less the circumstances of the publication are in dispute, when it is a mixed question of law and fact. The present case is one of qual- ified privilege. The plaintiff was not in government emploj^ under Porter. He was not called upon by any moral or legal obligation to make the report, and it was not made in the line of official duty. It was not absolutely privileged. But he was an American citizen, interested in the proper and efficient administration of the public service. He had, therefore, the right to criticise public officers; and if he honestly iind bona fide believed and had probable cause to believe that the character and conduct of the plaintiff were such that the public interests demanded his removal, he had a right to make the communication in question, giving his reasons therefor, to the head of the department. The presumption of law is that he acted bona fide, and the burden was on the plaintiff to show that he wrote the letter with malice or without probable cause. Briggs V. Garrett, 111 Pa. St, 404, 2 Atl. Rep. 513; Bodwell v. Osgood, 3 Pick. 379. "]\ralice, " in this connection, is defined as "any indi- rect and wicked motive, which induces the defendant to defame the plaintiff. If malice be proved, the privilege attaching to the occasion is lost at once." Odger, Sland. & L. 267; Clark v. Moly- neux, 3 Q. B. Div. 246; Bromage v. Prosser, 4 Bam. & C. 247; Hooper v. Truseott, 2 Bing. N. C. 4,57 ; Dickson v. Earl of Wilton, 1 Fost. & F. 419. The rules applicable to an ordinary action for libel apply in such cases whenever malice is proved. Proof that the words are false is not sufficient evidence of malice, unless there is evidence that the defendant knew at the time of using them that they were false. Fountain v. Boodle, 43 E. C. L. 605; Odger, Sland. & L. 275. That the defendant was mistaken in the words used by him on such confidential or privileged occasions is, taken alone, no evidence of malice. Kent v. Bongartz, 15 R. I. 72, 22 Atl. Rep. 1023, and eases cited. We do not assent to the opposite doctrine, which would seem to be laid down by Pearson, J., in Wakefield v. Smithwick, 4 Jones (N. C), 327, which is not supported by the authority he cites and doubtless intended to follow ; for, if the words are true, a defend- 42i PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. ant does not need the protection of privilege. It is when they are false that he claims it. To strip him of such protection there must be both falsehood and malice. To hold that falsehood is itself proof of malice in such cases reduces the protection to depend on the pre- sumption of the truth of the charges. If, however, there wers means at hand for ascertaining the truth of the matter, of which the defendant neglects to avail himself, and chooses rather to re- main in ignorance when he might have obtained full information, there will be no pretense for any claim of privilege. Odger, Sland. & L. 199. "To entitle matter otherwise libelous to the protection [of qualified privilege] which attaches to communications made in the fulfillment of duty, bona fides, or, to use our own equivalent, honesty of purpose, is essential ; and to this again two things are necessary: (1) That it be made not merely on an occasion which would justify making it, but also from a sense of duty; (2) that it be made with a belief of its truth." Cockburn, C. J., in Dawkins v. Lord Paulet, L. R. 5 Q. B. at page 102. The malice may be proved by some extrinsic evidence, such as ill feeling, or personal hostility, or threats, and the like, on the part of the defendant to- wards the plaintiff ; but the plaintiff is not bound to prove malice by extrinsic evidence. He may rely on the words of the libel itself, and on the circumstances attending its publication, as affording evidence of malice. Odger, Sland. & L. 277-288 ; 13 Amer. & Eng. Ene. Law, 431. [FACTS.] In the present case, the letter charged the plaintiff with murder, and with having cheated the defendant out of his election. There was evidence tending to prove that these charges were untrue, and that the character of plaintiff was good. There was no evidence in reply, and the answer admits that the object of the communication was to secure the removal of plaintiff from the ofSce he held. There was evidence on the face of the letter tending to show that the motive of the plaintiff was ill will to the plaintiff by reason of his alleged action in defrauding defendant of his election, and spleen on account of his (the defendant's) not having had his recommendation more considered, and his friends ap- pointed to the offices to which Ramsey and others, named in the letter, had been appointed. There being evidence tending to prove malice as above defined (which need not be personal ill will to the plaintiff), his honor erred in not submitting the case to the jury. If the defendant made the communication, not recklessly or ma- liciously, but bona fide, and out of a desire to benefit the public service, the plaintiff cannot recover, though the charges made by the defendant may be untrue. That the plaintiff was of a different political party from himself gave him, however, no license to make to the appointing power false and defamatory charges against him maliciously or without probable cause, simply to secure his re- moval from office. If the defendant thought the plaintiff should be removed from office because belonging to a different political party, and therefore, in his judgment, unsuitable or unfit to hold the office, he should have put his letter on that ground, and there Bee. 7.] PERSONAL SECURlTr, LIBERTY, ETC. 425 could have been no complaint. He had no right to make defama- tory charges, if false, to secure defendant's removal, the motive not being a bona fide one to purge the public service of a felon and ballot-box stuff er, but merely to remove one who was objectionable to him either as being of an opposite party or l)y having injured him personally, or from having been appointed instead of his own recommendee for the place. If the defendant's motive was to in- jure Hawkins, and to do that he recklessly made false and defama- tory allegations against the plaintiff, that is malice which would entitle the plaintiff to damages. It is to the public interest that the unfitness or derelictions of public officials should be reported to the authority having the power of removal, and any citizen bona fide making such report does no more than his duty, and is pro- tected by public policy against the recovery of damages, even though the charge should prove to be false. But public justice will not permit the government archives to be made with impunity the receptacle of false and defamatory charges, made to secure the re- moval of an officer, whereby the malice of the party making such charge may be gratified, or that some benefit or advantage, direct or indirect, may come to him. Proctor v. Webster, 16 Q. B. Div. 112. (1885). If the party knows the charge to be false, or makes it without probable cause, this is evidence of malice. Wakefield V. Smithwiek, 4 Jones (N. C), 327. If the charge in such cases is false, the law looks to the motive. If the defendant, not moved by the public welfare, but by some wicked and indirect motive, such as to gratify his malice, or his love of patronage, to assert his own influence, or the like, by false charges has wilfully or recklessly de- famed the plaintiff, the latter is entitled to recover damages at the hands of the jury. Error. See further as to privilege, Nissen v. Cramer, 104 N. C. 574, 10 S. E. 676; Logan v. Hodges, 146 N. C. at p. 41, 59 S. E. 349; Krebs v. Oliver, 12 Gray, at p. 243; Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279; Kirkpatrick v. Eagle Lodge, 40 Am. Rep. 316; 25 Cyc. 376 et seq.; 18 Am. & Eng. Enc. L. 1023 et seq. See also Sweeney v. Baker, 13 W. Va. 158, inserted post, in this section. See 4 L. R. A. (N. S.) 1126, 16 lb. 1017, and notes (character of servant); 5 lb. 163, and note (official reports); 14 lb. 565 and note (hospital records); 16 lb. 953, and note, 19 lb. 862 (publication of charges contained in pleadings and other court proceed- ings); 19 lb. 862, and note (publication of the proceedings of corporation meeting); 21 lb. 33, and note (letter from defendant to plaintiff's coun- sel) ; 20 lb. 361, and note (as affected by extent of publication — excessive publication). See "Libel and Slander," Century Dig. §§ 124, 363; De- cennial and Am. Dig. Key No. Series §§ 39, 123. COOMBS v. ROSE, 8 Blackf. 155. 1846. Privilege. Church Trials. fActlon for libel, brought by Coombs against Rose. Judgment against Coombs, who carried the case to the supreme court by writ of error. Re- versed. Defendant pleaded specially, that he and plaintiff were members of the Methodist church, and that the alleged libel consisted of charges preferred 426 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. against plaintiff by defendant under the rules of the church; that the charges were made in good faith and for the purpose of having them in- vestigated according to the rules of the church; that he deemed such a course necessary to sustain the character of the church; and that he did not maliciously publish the charges. After deciding that the publication complained of -was, if unexplained, clearly libelous, the opinion proceeds:] Dewey', J. . It remains to inquire whether the special plea is a bar to the action. It is contended that the occasion of making the publication com- plained of shows that it was a privileged communication, and re- buts the prima facie malice inferable from the language used. We have no doubt that words spoken or written, in the regular course of church discipline, to or of members of the church, have, as among the members themselves, very properly been held to be privileged communications, and not actionable unless express mal- ice be shown in the speaker or publisher. The King v. Hart, 1 Blacks. 3S(J ; Jarvis v. Hathaway. 3 Johns. 180 ; Remington v. Congdon. 2 Pick. 310. But. with a good deal of hesitation, we have come to the conclusion that it is not proper to extend the protec- tion to a member of the church, M'hen, on such an occasion, he im- plicates the character of a stranger to the rules of the church, who is not amenable to its authority, and who has no opportunity to re- pel an opprobrious accusation before the tribunal which is to try- it. We are aware that the restriction of the privilege to actions between the members of a church, may sometimes embarrass the enforcement of wholesome rules of discipline ; but it is equally ob- vious, that to extend it beyond such actions may sometimes occa- sion irreparable injury to the character of innocent persons. On the whole, we think Ihat an accusation made by a member of a church, in the regular course of church discipline, against a person not a member, cannot, as to him, be considered as a privileged conmiunication. The special plea being no bar to the action, the judgment should have been for the plaintiff. Judgment reversed. But see Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680, cited in 18 Am. & Bng. Enc. L. 1036, v?here the point covered by the principal case is treated. See also 25 Cyc. 390. The principal case is apparently approved in Kleizer v. Symmes, 40 Ind. 562; and it is fully approved in Nix v. Caldwell, 81 Ky. 293, 50 Am. Rep. 163. See "Libel and Slander," Century Dig. § 114; Decennial and Am. Dig. Key No. Series § 36. FITZGERALD v. ROBINSON, 112 Mass. 371, 378-381. 1873. Privilege. Excommunication. r Action of slander. Demurrer by defendant. Demurrer sustained, and plaintiff appealed. In the supreme court the demurrer was sustained as to some of the counts and overruled as to others. Only so much of the opinion as relates to the question of privilege and excommunication is here inserted.] Ames, J. . Taking the whole count together, it is ap- parent that it is intended to charge more than a mere slander upon Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 427 the plaintiff's good name. His complaint is in substance, and when relieved of all unnecessary averments, that the defendant made a charge against him which (whether criminal in its nature or not; was wholly false and malicious; that for the alleged reason con- tained in that false charge he proceeded on a certain Sunday, in the presence of the congregation and during service, in his official character as a priest, to pronounce an anathema upon the plaintiff, and to go through a ceremonial which was understood, and was intended to be understood, as a formal, authoritative, ecclesiastical sentence of exconununication, depriving him of all his rights and privileges as a member of the Roman Catholic Church ; and which had the effect of injuring him in his business as a trader by de- priving him of the custom and trade of a large number of persons, enumerated in the declaration. As the question of the sufficiency of this count in the declaration is raised on a demurrer, we are to inquire whether, assuming the facts averred to be true, they are sufficient as a matter of law to enable the plaintiff to maintain this action. As a member of that communion, he was subject to its discipline in matters spiritual, as administered by its proper officers, and in accordance with its rules. The power of excommunication resides somewhere in that church, and if the defendant, in virtue of his priestly office, was vested with that power, as the declaration seems to imply, the exercise of it was in the nature of a judicial act. The declaration does not distinctly inform us what his authority was in that respect, hut if the act done amounted to a valid excommunication, it is not for the civil courts to inquire into the reasonableness or propriety of the act. If the defendant was competent to pass sentence of excom- munication, we cannot inquire into the grounds and regularity of the proceedings. Remington v. Congdon, 2 Pick. 310 ; Bouldin v. Alexander, 15 Wall. 131 ; Shannon v. Frost, 3 B. Mon. 253 ; Farns- worth V. Storrs, 5 Cush. 412 ; Gregg v. Mass. Med. Soc, 111 Mass. 185. We say that the declaration seems to imply that the charge made by the defendant, if true in fact, would have rendered the plaintiff liable to spiritual censure, according to the discipline of that church. There is no other view of the case, in which the falsity of the charge can be said to be material. The plaintiff ap- parently rests his case on the falsity and not on the trivial and frivolous nature of the charge. But if, on the other hand, the defendant had no authority to pronounce such a sentence, and his act in doing so was a mere bald assumption of power not intrusted to him, the plaintiff has not been excommunicated at all. It is not for us to decide what remedy he has, or whether he has any whatever in such case, as to his spiritual rights. It must always be remembered that in a court of law the only inquiry is as to civil rights. If the declaration is to be understood as presenting the plaintiff's Qase in this aspect, the amount of his grievance is that the effect of the language and cere- monies complained of was to induce certain persons to consider him as laid under an interdict, and to avoid all intercourse and busi- 428 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. ness with him for that reason. But as the words complained of do not charge the plaintiff with any misconduct which the law can take notice of, the misconstruction of those words by such persons is not sufficient to furnish a ground for an action at law. The der- laration does not charge an intent to injure the plaintiff in any of his business relations. The difficulty of the plaintiff's case as presented in this count lies in the fact, that in this country and in this age, a sentence of excommunication, even if pronounced by competent authority, and still more, if possible, when pronounced without authority, is incapable of impairing or affecting a man's civil rights. There was a time when excommunication was attended \vith many seri- ous temporal inconveniences; the object of it was excluded from the society of all Christians, and disabled to do any act required to be done by one that is probus et legalis homo. He could not serve on juries, nor be a witness in any court, and, which is still more serious, he could not bring an action, real or personal, to re- cover lands, or money due him. He was further liable to the writ de excommunicato capiendo, by which the sheriff was directed to take the offender, and imprison him in the county jail, until he was reconciled to the church. On these grounds, says Mr. Starkie, the case of Barnabas v. Traunter, 1 Vin. Abr. 396, may perhaps be considered as authority consistent with the general rule. Starkie on Slander (3rd ed.) 104. This case is cited and relied upon by the plaintiff, but it is hardly necessary to say that none of the rea- sons suggested by Mr. Starkie as being "perhaps" sufficient to sustain it, have any existence under our laws. That was a case in which the rector of a parish, under pretense of written directions from the ordinary, falsely and maliciously announced from his pulpit that the plaintiff had been excommunicated. The plaintiff 's action was sustained ; but it is clear that this case Is not law in this commonwealth. The result of this examination is that the demur- rer to the first count must be sustained. The second and third counts, which present the same cause of action in other forms, are liable to substantially the same objections, and must also be ad- judged bad on demurrer. . . . See further as to excommunication as a basis for an action for defama- tion, Landis v. Campbell, 79 Mo. 433, 49 Am. Rep. 239. See "Libel and Slander," Century Dig. § 114; Decennial and Am. Dig. Key No. Series § 36. SWEENEY V. BAKER, 13 W. Va. 158, 31 Am. Rep. 757. 1878. Privilege. "Freedom of the Press." "Lilierty of the Press." Criticism of Candidates. [Action for libel. Plaintiff was a candidate for the House of Dele- gates. Defendants were proprietors of a newspaper. Judgment against defendants. Affirmed. . The defendants published many articles against the plaintiff. Some contained charges libelous per se, while others, though very abusive, did not reach that point. Only so much of the opinion as bears upon the question of privilege is here inserted.] Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 429' Green, Pres. Before considering directly the questions in- volved in this case, I will briefly consider the rights and duties of the parties to this action, arising from their relations to each other. The plaintiff was a candidate to represent the county of Ohio in the House of Delegates of the state of West Virginia ; and the de- fendants were proprietors of the "Wheeling Daily Register, a news- paper published in said county. A newspaper proprietor is just as liable for what he publishes in his newspaper as any other person ; and he is liable in the same manner and to the same extent. The law takes no cognizance of newspapers ; and there is no distinction between the publication by the proprietors of a newspaper, and a publication by any other person. The terms "freedom of the press" and "liberty of the press" have misled some to suppose that the proprietors of a newspaper had a right to publish that with impunity, for the publication of which others would have been held responsible. But the proper signification of these phrases is, if so understood, misapprehended. The ' ' liberty of the press" consists in a right in the conductor of a newspaper to print whatever he chooses witJiout any previous license, but subject to be held responsible therefor to exactly the same extent, that any one else would be responsible for the publication. In the case of Stebbins v. Merritt, 10 Cush. 25, the instruction given by the court below, and approved by the supreme court, was: "It has been urged upon you, that conductors of the public press are entitled to peculiar indulgence, and have especial rights and privileges. The law recognizes no such peculiar rights, privi- leges, or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the community have, and no more. They have the right to pub- lish the truth, but no right to publi.sh falsehoods to the injury of others with impunity," In Davidson v. Duncan, 7 El, & Bl, 231 (90 E, C, L,), Coleridge, J., says: "There is no difference in law whether the publication is by the proprietor of a newspaper or by some one else. There is no legal duty on either to publish what is injurious to another ; and if any person does do so, he must defend himself on some legal ground, ' ' But the fact that one is a candidate for an office in the gift of the people affords in many instances a legal excuse for publishing language concerning him as such candidate, for which publication there would be no legal excuse, if he did not occupy the position of such candidate, whether the publication be made by the proprie- tors of a newspaper, or by a voter, or other person having an in- terest in the election. The conduct and actions of such candidate may be freely commented upon ; his acts may be canvassed, and his conduct boldly censured. Nor is it material that such criticism of conduct should in the estimate of a jury be just. The right to criticise the action or conduct of the candidate is a right, on the part of the party making the publication, to judge himself of the justness of the criticism. If he was liable for damages in an action of libel for a publication criticising the conduct or action of such a 430 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. candidate, if a jury should hold his criticism to be unjust, his right of criticism would be a delusion, a mere trap. The only limitation to the right of criticism of the act or conduct of a candidate for an office in the gift of the people is, that the criticism be bona fide. As this right of criticism is confined to the acts or conduct of such candidate, whenever the facts which constitute the act or conduct criticised, are not admitted, they must, of course, be proven. But as respects his person there is no such large privilege of criticism, though he be a candidate for such office. This large privilege oi criticism is confined to his acts. The publication of defamatory language, affecting his moral character, can never be justified on the ground that it was published as a criticism. His talents and qualification mentally and physically for the office he asks at the hands of the people, may be freely commented on in publications in a newspaper, and though such comments be harsh and unjust, no malice will be implied ; for these are matters of opinion, of which the voters are the only judges ; but no one has a right by a publication falsely to impute crimes to such a candidate, or pub- lish allegations falsely affecting his character. . . It is proper to say, that what I have said with reference to the right to publish certain remarks in a newspaper relative to a can- didate for ofSce, within the gift of the people, should be under- stood as confined to candidates for office to be elected by the peo- ple, and cannot be extended to candidates for an office, the ap- pointment to which is made by a board of limited members, such as a city council . The right to make unjust and false commen- taries on the qualifications of a candidate for an office of this de- scription is much more limited. See Kren v. Bennett, 19 N. Y". 174. Judgment affirmed. See 20 L. R. A. (N. S.) 361, and note. See Ramsey v. Cheek, 109 N. C. 270, inserted ante, in this section. See "Libel and Slander," Century Dig. § 146; Decennial and Am. Dig. Key No. Series § 48. KNOTT V. BURWELL, 96 N. C. 272, 277-280, 2 S. E. 588. 1887. Mutual Ldbels. Retaliation. [Action for libel. Verdict and judgment against defendant, and he ap- pealed. Reversed. Defendant, in his answer, set up, by way o£ defense and counterclaim that the libel complained of was published because o£ certain slanders uttered against him by the plaintiff, and explains the circumstances which provoked him to publish the article complained of as a means of self-vindication. The proof oifered to sustain these allegations and show the circumstances etc., was not admitted. Such proof was of- fered in mitigation of damages. The substance of the rejected evidence appears in the opinion, and only that part of the opinion which bears upon the exclusion of this evidence, is here inserted.] Smith, C. J. The rulings of the court in refusing the proffered evidence deprive the defendant of the means of showing the provocation given by the plaintiff for the retaliatory and vin- dicating utterance of the words penned in the form of an appeal to .Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 431 the public, and deny him the opportunity of showing the facts oi the plaintiff's own misconduct which are set out in the cards. This leaves him with no shadow of excuse for what he uttered in a mo- ment of irritation, and smarting under a sense of in.iury, and under the imputation of being influenced solely by a feeling of malignity towards the plaintiff, and a revengeful spirit excited by no .just cause. It cannot be that the same punitory consequences are to be measured out in the one case as in the other, nor is such the law. It is true, under former technical rules of pleading applicable to actions for defamation, it was held that the general issue did not let in evidence offered to sustain it to be considered in mitigating damages, as is decided in Smith v. Smith, 8 Ired. 29 ; but this has been superseded by the more equitable provision found in the code (§ 266), which allows in the answer "both the truth of the matter charged as defamatory and any mitigating circumstances to re- duce the amount of the damages;" and whether the defendant "prove the .justification or not, he may give in evidence the miti- gating circumstances. ' ' • As malice is involved in the utterance of false defamatory words, and separate proof of it is not essential to the maintenance of the action, it is a material element in aggravating damage ; and es- pecially so, whenever the jury are at liberty to make them exem- plar}^, it is but reasonable to allow the defendant to disprove its presence, and lessen its intensity in reducing the damages. "Even in states where truth of the words is not permitted in mitigation under the general issue, yet proof tending to show that the plain- tiff might be guilty of such acts as are charged may be given to dis- prove malice, and thus reduce the damage, as that, prior to the speaking of the words, a common report or suspicion existed that the plaintiff had committed the act charged," — with numerous references in the footnote, found on page 711 of Polkard & Starkie on Slander and Libel, from the note to which, inserted by the edi- tor (Woods), the extract is taken. Among the cases cited is that of Nelson v. Evans, 1 Dev. 9, where it is said a prevalent general report of the truth of the words spoken may be proved in mitiga- tion, but not in .justification. "In cases of libel," we quote from Wood's ilayne on Damages (§ 122), "the defendant may give any evidence in reduction of damages which goes to prove the absence of malice, or he may show previous provocation received from the plaintiff. This provoca- tion ought to originate in the same subject-matter, or be closely connected with it, out of which the defendant's slander arose." IMay V. Brown, 3 Barn. & C. 113, 10 E. C. L. 124. [FACTS.] Now to apply the rule to the facts of the present case. The defendant, in a forbearing spirit, on hearing that a seri- ous charge had been made against him for false weighing, sends liis brother to the plaintiff to ascertain from him if he was not in ■error in his statements about the defendant's short weighing, and to obtain from him a written correction. The interview takes ■place. The current report, so prejudicial to the defendant, is com- 432 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. municated to the plaintiff, Avho says it was a mista.ke of his, and that he would in the morning sign a card to that effect. It was prepared hy the editor of another newspaper ; and, when presented to the plaintiff, he peremptorily refuses to put his name thereto, nor does he suggest any modification in its form which would be acceptable. This, when reported to the defendant, was followed very soon by the alleged libel. Ought not these facts to have been heard by the .jury, and, if accepted as true, ought they not to have been considered in determining the punishment to be suffered by the defendant in giving expression to his resentment in the form adopted ? AVas it to be expected that he would rest silent under so injurious a charge, and repress all resentment at the plaintiff's re- fusal of any correction? "Was it without any palliating circum- stances that, in repelling the charge, he struck back at his assail- ant ? Certainly, one feeling himself so wronged, and with correc- tion refused by the wrongdoer, does not stand in the same light as one who so acts with no provocation and from sheer malignity ; and yet the exclusion of the evidence leaves him equally defenseless before the jury as would be the other. So, too, we think the statements in the depositions, with the in- formation possessed by the defendant, should have been heard by the jury in mitigation, because the evidence shows that the charge about the "nested tobacco" was not a mere fabrication of the de- fendant, and hence the damages should not be as great as if it was the unsupported coinage of the defendant's own brain, and con- ceived and brought out from a malicious and wicked heart. For these reasons the verdict must be set aside, and a venire de novo awarded in the superior court. See further as to mutual libels, retaliation, etc., Jauch v. Jauch, 50 Indiana, 135, which holds that defendant may show that he spoke the slanderous words in a moment of heat and passion under the provocation from the plaintiff immediately preceding his utterances. Under such cir- cumstances all acts, etc., constituting parts of the res gestae are admissi- ble in mitigation of damages. Heat and passion alone do not mitigate; but when such emotions are directly attributable to contemporaneous pro- vocation by the plaintiff, they do mitigate the damages. See 25 Cyc. 421, 518; 18 Am. & Bug. Enc. L. 1108. See "Libel and Slander," Century Dig. §§ 164, 318; Decennial and Am. Dig. Key No. Series § 63. CHILD V. HOMER, 13 Pickering, (Mass.), 503, 510. 1833. Mutual Libels. Retaliation. [Action on the case for alleged libels by the publishers of a newspaper. Verdict and judgment against defendants, and they moved for a new trial because of the ruling out of evidence offered by them. It is upon this motion that the portion of the opinion here inserted, was written. The court sustained the motion and ordered a new trial. The matter complained of was admitted to be libellous and the con- test was over the amount of damages, and that was the only question argued before the jury. Plaintiff and defendants had been publishing poems, etc., about each other in the newspapers. These skits were begun Sec. 7.] PERSONAL SECURITY, LIBERTY, ETC. 433 in pleasantry, but became caustic and finally degenerated into abusive epithets which culminated in libel. The evidence ruled out was to show the articles published by the plaintiff concerning the defendants. The judge ruled that it was not competent to prove a separate and independent libellous attack, made by the plaintiff on the defendants, either in justifi- cation or in mitigation of damages, unless such publications were referred to in the libel sued upon. Defendants insisted that the publications were so referred to. After reference to the contents of the various articles written by the plaintiff and the defendants, the opinion proceeds:] Wilde, J. . . . On both sides, it is apparent, they were in- tended to be abusive and provoking, to wound the feelings, and to exasperate the passions of each other. Both parties were in the wrong, both violated the law ; how then can either of them be en- titled to any considerable damages ? On the 3rd of July the plain tiff throws out a challenge or defiance to the other party to con- tinue the contest, which before appears to have been conducted in a harmless manner; certainly it was not very offensive. If one challenges another to strike him, and afterwards brings his action for a consequent assault, there can be no doubt that such challenge may be proved in mitigation of damages; but as the defendants are not prosecuted for the publication of the 4th in reply, this part of the controversy is not perhaps of much importance. But on the 9th the plaintiff follows up his challenge, and then foUovced a con- tinued combat until the 13th ; a war of words and abusive epithets, of reproach and ridicule. These publications, we think, ought to go to the jury in connection, as explanatory of each other, and to show a provocation. This course of administering justice we can- not think will violate any settled rule of law ; and it may have a salutary effect in discouraging that licentious abuse of the liberty of the press, which has become a great and growing evil, and ought to be diminished. If parties will engage in newspaper controver- sies, and yielding to their angry passions, will lavish abuse and slanderous imputations on each other with an unsparing hand, let them be prosecuted and punished, if the public good requires it; but when both parties are in pari delicto, neither of them should be encouraged in a claim for damages and indemnity. Such a claim must be brought forward with a very bad grace, especially when the party complaining was the one who commenced the con- troversy. But we must not be understood in too broad a sense. We do not admit the doctrine, that distinct and independent libels may be set off against each other; or that in an action for one, the other may be given in evidence in mitigation of damages. This would undoubtedly lead to confusion and embarrassment. I confine my remarks to cases of recent provocations, and to those where the libels offered in evidence are explanatory of the meaning of the libels complained of, and of the occasion of writing them ; all being parts of a connected and continued controversy. In all such cases such evidence of provocation, or explanatory matter, may be re- ceived in evidence, as we think, without violating any principle of law, or established rule of evidence. New trial granted. Remedies — ^28. 434 PERSONAL SECURITY, LIBERTY, ETC. [CIl. 5. For a full discussion of the principles announced in the principal case, see 16 South. 192, 28 L. R. A. 721. See "Libel and Slander," Century Dig. §§ 164, 318; Decennial and Am. Dig. Key No. Series § 63. PITTOCK V. O'NEILL, 63 Penn. St. 253, 3 Am. Rep. 544. 1870. Province of the Jury in Libel. Lord ErsTcine's Victory. Distinction Between Criminal and Civil Proceedings for Libel, as Regards the Powers of the Judge and Jury. ' [O'Neill sued Pittock for libel. Verdict and judgment against Pittock and he appealed. Affirmed. The action was against Pittock and Mills, the editor and publisher, respectively, of a newspaper, for publishing an article alleged to be libellous. The publication was admitted. The Judge assumed the power of determining, as a matter of law, whether or not the article published was libellous, and he instructed the jury that it was, without doubt, "libellous and grossly so." To this Pittock and Mills excepted.] Sharswood, J. As the rule is well expressed by an elementary writer, "the quality of the alleged libel as it stands on the record, either simple or as explained by averments and innuendoes, is purely a question of law for the consideration of the court." 2 Starkie on Slander and Libel, 281. That this was the law in England, both in civil and criminal proceedings, up to 1792, was maintained so rigidly that nothing was submitted to the .iury in such cases but the fact of publication and the truth of the innuen- does. Rex V. Woodfall, 5 Burr. 2661 ; The King v. The Dean of St. Asaph, 3 T. R. 428, note; The King v. Withers, Td. 428. In con- sequence of these decisions the statute of 32 Geo. Ill, eh. 60, com- monly known as Mr. Fox's act, was passed. This statute is con- fined in terms to trials of indictments or informations when an is- sue or issues are joined between the king and the defendant or de- fendants on the plea of not guilty pleaded, in which case it is de- clared and enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed to find the defendant guilty merely on proof of the publication, and of the sense ascribed to the same in the indictment or information. By the second section it was pro- vided "that on every such trial the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases." It has never been pretended that this statute had any application to civil actions (Levi v. Milne, 4 Bing. 195), and its obvious intention was merely to restore to juries their common law right to give a gen- eral verdict in cases of libel, just as in other criminal cases, of which they had been unconstitutionally deprived. Hence the law was carefully made declaratory. The 7th section of the 9th article of the constitution of Pennsylvania has expressed the same consti- tutional doctrine and incorporated it with the declaration of Sec. 7.] PERSONAL SECUEITV, LIBEBTY, ETC. 435 rights: "In alMndictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." There can be no doubt that both in criminal and civil eases the court may express to the jury their opinion as to whether the publication is libelous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury ha.ve the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libellous supposing the innuendoes to be true, and if that instruction is disregarded, the verdict will be set aside as contrary to law. In England the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be upon the ground that Mr. Fox's act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel ; upon what principle of construction, how- ever, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition. Folkard's Stark. 202; Baylis v. Lawrence, 11 Ad. & El. 920 ; Parmiter v. Coupland, 6 M. & W. 105 ; Campbell v. Spot- tiswoode, 3 B. & G. 781 ; Cox v. Lee, 4 Exch. L. R. 284. These cases were followed in Shattuek v. Allen, 4 Gray, 540. Yet it is clearly held that a verdict for the defendant upon that issue will be set aside and a new trial granted. Hakewell v. In- gram, 28 Eng. Law & Eq. 413. "Though in criminal proceedings for libel," said Jeevis, C. J., "there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not. ' ' This must be conceded to be an anomaly ; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this state by long prac- tice, never questioned, but incidentally confirmed in McCorkle v. Binns. 5 Binn. 340, and Hays v. Brierly. 4 Watts, 392. It was held in the case last cited that where words of a dubious import are used, the plaintiff has a right to aver their meaning by innu- endo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably discussed and fully considered in Snyder v. Andrews, 6 Barb. 43 ; Green v. Telfair, 20 Id. 11 ; Hunt v. Bennett, 19 N. Y. 173, and the law established on its old foundations. The Dean of St. Asaph's case is the cause celebre out of which grew Mr. Fox's act. In that case it was insisted by the prosecution that whether or not a publication was a libel was no question for the jury, 436 PERSONAL SECUKITY, LIBERTY, ETC. [CJl. 5. and that they were hound to convict the defendant in a criminal prosecu- tion for lihel if they believed that he caused the publication of the article alleged to be libellous. 8 Camp. Lives L. C. 273. Lord Brsklne, who appeared for the Dean of St. Asaph, took the opposite ground and argued to the jury that they were to pass on the question of libel or no libel as well as upon the question of publication. "Mr. Justice Bullee, however, began his summing up by telling the jury that, there being no doubt as to the innuendoes, the only question they had to decide was, whether the defendant was or was not proved to have published the pamphlet? He overruled all that had been contended for on this subject by the de- fendant's counsel, saying. How this doctrine ever comes to be now seri- ously contended for is a matter of some astonishment to me, for I do not know any one question in the law which is more thoroughly established; and, after a great many similar observations, he thus concluded: There- fore, I can only say that, if you are satisfied that the defendant did publish this pamphlet, and are satisfied as to the truth of the innuendoes, you ought in point of law to find him guilty. "The jury withdrew, and in about half an hour returned into court When their names had been called over, the following scene was enacted. Clerk. 'Gentlemen of the jury do you find the defendant guilty or not guilty?' Foreman. 'Guilty of publishing only.' Brskine. 'You find him guilty of puljlishing only?' A Juror. 'Guilty only of publishing.' Duller, J. 'I believe that is a verdict not quite correct. You must explain that one way or the other. The indictment has stated that G means 'Gentle- man,' F, Farmer,' the King, 'the King of Great Britain,' and the Parlia- ment, 'the Parliament of Great Britain.' Juror. 'We have no doubt about that.' Buller, J. 'If you find him guilty of publishing, you must not say the word "only." ' Erskine.. 'By that they mean to find there was no sedition.' Juror. 'We only find him guilty of publishing. We do not find anything else.' Erskine. 'I beg your Lordship's pardon; with great sub- mission, I am sure I mean nothing that is irregular. I understand they say, "We only find him guilty of publishing." ' Juror. 'That is all we do find.' Buller, J. 'If you only attend to what is said, there is no question or doubt.' Erskine. 'Gentlemen, I desire to know whether you mean the word "only" to stand in your verdict?' Jurymen. 'Certainly.' Buller, J. 'Gentlemen, if you add the word "only," it will be negativing the innuendoes.' Erskine. 'I desire your Lordship, sitting here as judge, to record the verdict as given by the jury.' Buller, J. 'You say he is guilty of publishing the pamphlet, and that the meaning of the innuendoes is as stated in the indictment.' Juror. 'Certainly.' Erskine. 'Is the word "only" to stand as part of the verdict?' Juror. 'Certainly.' Erskine. 'Then I insist it shall be recorded.' Buller, J. 'Then the verdict must be misunderstood; let me understand the jury.' Erskine. 'The jury do understand their verdict.' Buller, J. 'Sir, I will not be interrupted.' Erskine. 'I stand here as an advocate for a brother citizen, and I de- sire that the word only be recorded.' Buller, J. 'Sit down, sir; remem- ber your duty, or I shall be obliged to proceed in another manner.' Erskine. 'Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours. I shall not alter my conduct.' "The learned judge took no notice of this reply, and, quailing under the rebuke of his pupil, did not repeat the menace of commitment. This noble stand for the independence of the Bar would of itself have entitled Ers- kine to the statue which the profession affectionately erected to his mem- ory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor during the struggle, no less than the spirit and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. The example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in England. "The jury, confounded by the altercation, expressed a wish to with- draw, and the verdict was finally entered, 'Guilty of publishing, but whether a libel or not we do not find.' " [At an ensuing term, Erskine 8CC. 7.] PERSONAL SECURITY, LIBERTY, ETC. 437 made a motion to set aside the verdict, which was overruled by Lord Mansfield. He then moved in arrest of judgment, and judgment was arrested.] "So ended this famous prosecution. It seemed to establish forever the fatal doctrine, that libel or no libel was a pure question of law, for the exclusive determination of judges appointed by the Crown. But it led to the subversion of that doctrine, and the establishment of the liberty of the press, under the guardianship of English juries. The public mind was so alarmed by the consequences of this decision, that Mr. Fox's Libel Bill was called for, which declared the right of jurors in cases of libel; and I rejoice always to think that it passed as a declaratory act, although all the judges unanimously gave an opinion in the House of Lords, that it was inconsistent with the common law. I have said, and still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been re-established in this country." Campbell's Lives of Lord Chan. vol. 8, 276-279. The sum and substance of the Libel Act is as stated by Lord Erskine in defense of Mr. Cuthell, before Lord Kenyon, to wit: "An indictment for libel is, therefore, considered an anomaly in the law. It was held so, undoubtedly; but the exposition of that error lies before me; the Libel Act lies before me, which expressly and in terms directs that the trial of a libel shall be conducted like every other trial for every other crime; and that the jury shall decide, not upon the mere fact of printing and publishing, but upon the whole matter put in issue, i. e. the publication of the libel with the intention charged by the indictment. This is the rule by the Libel Act, and you, the jury, as well as the court, are bound by it." To this statement Lord Kenyon naively replied, that the passing of the Libel Act was "a race for popularity between two seemingly con- tending parties, who then chose to run amicably together;" and under his instruction the defendant was found guilty.. Campb. Lives L. C. vol. 8, 346. When Mr. Cuthell heard the sentence imposed upon him by Lord Kenyon, he doubtless thought that he had experienced a practical realization of his peculiar name. In answer to an inquiry from the editors, Chief Justice Claek, of the North Carolina supreme court, writes: "It is not my understanding that we ever enacted Fox's Libel Bill. We have acted on the understanding that as our statute makes the truth of the charge a full defense, the act is not needed." The same battle that was fought by Lord Erskine in the Dean of St. Asaph's case was fought In America by Alexander Hamilton In People v. Croswell, 3 Johns. Cas. (N. Y.) 337, and with a like result. Pox's Libel Bill was, in effect, passed by the legislature of New York in conse- quence of Hamilton's defeat. The act was introduced and advocated by William W. Van Ness, Hamilton's associate counsel in the Croswell case. That the legislature indorsed Hamilton's position is shown by the fact that the statute is declaratory of the law. For a full history and elab- orate discussion of the whole matter, see People v. Croswell, supra; State V. Croteau, 23 Vermont, 14; Com. v. Anthes, 5 Gray, 185; Sparf and Han- sen v. U. S., 156 U. S. 51, 77, 147, 15 Sup. Ct. 273, and the instructive biography of Alexander Hamilton by Mr. Scott in Great American Law- yers, vol. 1 at pp. 372-381. See "Libel and Slander," Century Dig. §§ 356 - 364, 443; Decennial and Am. Dig. Key No. Series §§ 123, 158. 438 PERSONAL SECURITY, LIBERTY, ETC, [CJl. B^RANCIS et al. v. FLINN, 118 U. S. 385, 6 Sup. Ct. 1148. 1886. Injunction Against Libel. [Bill in equity by Flinn to restrain Francis and others from doing cer- tain things — making certain publications in newspapers — intended to in- jure Flinn's business. Demurrer filed and overruled. An injunction pendente lite was granted and the decree of the court below made the injunction perpetual. Francis et al. appealed. Reversed. Among other things it was alleged in the bill that Francis and others had combined for the purpose of destroying the business and property of the plaintiff by publications in the newspapers. What the publications were of which Flinn complained, the bill failed to disclose.] Mr. Justice- Field. . . If the publications in the news- papers are false and injurious, he can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the litigation properly belonging to courts of law. We think the court below should have sustained the demurrer of the defendants for want of equity in the bill. The decree must therefore be reversed, and the cause remanded, with instructions to dismiss the bill ; and it is so ordered. See "Injunction," Century Dig. §§ 174-176; Decennial and Am. Dig. Key No. Series §§ 101, 102 RAYMOND V, RUSSELL et al., 143 Mass. 295, 9 N. E. 544. 1887. Injunction. Against Liiel. [Bill in equity to restrain defendants, proprietors of a mercantile agency, from publishing the plaintiff's name and business standing in their records and books. Demurrer filed, and the case heard by the su- preme court on bill and demurrer. Bill dismissed.] MoETON, C. J. It is not within the jurisdiction of a court of equity to restrain, by injunction, representations as to the char- acter and standing of the plaintiff or as to his property, although such representations may be false, if there is no breach of trust or of contract involved. Boston Diatite Co. v. Florence Manuf 'g Co.. 114 Mass. 69, and eases cited; Whitehead v. Kitson, 119 Mass. 484; Prudential Assur. Co. v. Knott, L. E, 10 Ch, 142. The bill before us alleges that the defendants have published, and intend to publish in the future, the name and business standing of the plaintiff in the records and books of a mercantile agency. It does not even allege that the representations are false or malicious. If he has any remedy, which we do not mean to intimate, it is by an action at law. The bill does not state a case within the equity jurisdiction of the court. Bill dismissed. The English practice was very strict in former times against granting injunctions to restrain libels; but such injunctions are granted now, by 1 eason of an act of parliament passed in 1873, where the publication would (Sec. 8 a.] personal security, liberty, etc. 439 injure trade, property, or reputation. But tlie rule in America may be said to be that of the principal cases. Where the publication is not a mere libel but a boycott, injunction will issue. 18 Am. & Eng. Enc. Law, 1120, 1121. For injunctions, etc., in cases of publishing a picture of a person — in- vading the supposed law of privacy, such as printing a young lady's pic- ture on sacks of flour as a trade-mark or advertisement, see 80 N. W. 285, 46 L. R. A. 219; 64 N. E. 442, 59 L. R. A. 478, and cross-references in both cases; 7 L. R. A. (N. S.) 274. An interesting feature of the law of injunction against publications in newspapers, arose in the Buck Stove and Range case, in which Samuel Gompers, Frank Morrison, and John Mitchell, oflScers of the American Federation of Labor, were sentenced to imprisonment for contempt, be- cause they were held to have violated an order of injunction forbidding the publication of the Buck Stove and Range Co. in a boycott list. The case was brought in the supreme court of the District of Columbia and the ruling of that court was affirmed on Nov. 2, 1909, by the court of ap- peals of the District of Columbia. The case will go to the supreme court of the United- States. See "Libel and Slander," Century Dig. §§ 169-171; Decennial and Am. Dig. Key No. Series § 98. Sec. 8. Deprivation of Liberty. (a) Habeas Corpus. SIMMONS V. GEORGIA IRON & COAL CO., 117 Ga. 305, 43 S. E. 780, 61 L. R. A. 739. 1902. History and Nature of the Remedy. Practice in Such Proceedings. [Winnie Simmons sued out a writ of habeas corpus in a city court for the discharge of her husband. Petition dismissed, and she carried the case to the supreme court by writ of error. Reversed. The petitioner alleged that her husband had been convicted of certain offenses and sen- tenced to fine and imprisonment, and that he was unlawfully detained in prison by the Georgia Iron & Coal Co., a private corporation doing a mining business. Only so much of the opinion as discusses the history and nature of the remedy of habeas corpus and the practice in such pro- ceedings, is here inserted.] Cobb, J. . . 1. Questions growing out of an alleged ille- gal restraint of a person's liberty are always questions of much delicacy and importance. They impose upon the judiciary the duty of instituting a careful and painstaking investigation into the cause of the detention, and, if it be shown to be illegal, the courts should not be too astute in finding technical objections to the man- ner in which the legality of the restraint is called in question. On account of the character and importance of the questions made by the record, it is necessary to make some inquiry into the nature and object of the writ of habeas corpus, and the proceedings upon which it is issued. Many are accustomed to regard the writ as al- most obsolete and of little practical value, and this results, doubt- less, from the fact that it is so seldom called into operation. But the writ is as much a palladium of liberty to-day as it was during the abuses existing in the days of the ancient English sovereigns. 440 PEESONAL SECURITY, LIBBETY, ETC. [Ch. 5. It is to the credit of an advanced civilization that the necessity for the issuance of the writ rarely ever arises, but the Constitution of this state declares that the privilege of the writ shall never be suspended, and it stands to-day, as it did in the days of King Charles, to protect and safeguard the liberty of the citizen. The origin of the writ has been left in some obscurity. There is ample evidence, however, that it was in use before the days of Magna Charta. See 2 Spell. Extra. Rel. §§ 1154, 1157; 15 Am. & Eng. Bnc. L. (2d ed.), 128, 129. The common-law writ became so little respected that it no longer afforded real or substantial benefits to English subjects, and it was not until after the passage of St. 31, Chas. II, known as the ' ' Habeas Corpus Act, ' ' that the writ came to be thoroughly reorganized in its fullest scope. This act, by vir- tue of our adopting statute, became a part of the law of this state. See Schley's Dig. p. 262; Cobb's Dig. p. 1131. Numerous changes have since been made in the act by statutes passed since its adop- tion. See Cobb's Dig. 543; Pen. Code 1895, § 1210 et seq. The writ with which we are now dealing was the one known to the com- mon law as the "habeas corpus ad subjiciendum," and was issued in cases of illegal detention. 3 Bl. Com. p. 131. The proceeding by habeas corpus was, strictly speaking, neither a civil nor criminal action. "It was not a proceeding in a suit but was a summary application by the person detained. No other party to the proceed- ing was necessarily before or represented before the judge except the person detaining, and that person only because he had the cus- todj'' of the applicant, and was bound to bring him before the judge to explain and justify, if he could, the fact of imprison- ment. It was, as Lord Coke described it 'festinum remedium. ' " Church, Hab. Cor. § 88, p. 140. See, also, in this connection, 3 Bl. Com. p. 131 ; 2 Spelling, Extra. Rel. § 1152. The act of Charles II certainly did not change the nature of the proceeding, or the practice of the courts in granting the writ. See Church, Hab. Cor. § 100. On the contrary, it was designed to correct the im- perfections of the common-law writ, and make it a speedy remedy for a person to regain his liberty when illegally detained by an- other. It seems to have been doubted whether, under the common law, the writ could be issued in vacation, and this was doubtless one of the reasons which brought about the passage of the act. See, in this connection, 3 Bl. Com. 131 ; 4 Bacon's Ab. pp; 568, 593 ; Church, Hab. Cor. § 171; 15 Am. & Eng. Ene. L. (2d ed.), 129. The great purpose of this act, therefore, was to make the remedy speedy and effective. The proceeding is sometimes characterized as a "cause" or "action," but erroneously so; and it has been called a civil or criminal proceeding, according to whether the per- son is held in custody on a criminal charge, or by private restraint. While instances may arise where it is important to determine whether it is a civil or criminal proceeding, it can never be accu- rately characterized as a technical suit or action. See, in this con- nection, 15 Am. & Eng. Bnc. L. pp. 157, 158; 2 Spell. Extra. Rel. § 1161. It may be analogized to a proceeding in rem, and is in- Sec. 8 a.] personal secueity, liberty, etc. 441 stituted for the sole purpose of having the person restrained of his liberty produced before the judge, in order that the cause of his detention may be inquired into, and his status fixed. The person to whom the writ is directed makes response to the writ, not to the petition. 9 Ene. P. & P. 1035. When an answer is made to the writ, the responsibility of the respondent ceases. See, in this con- nection, Barth v. Clise, 12 Wall. 400, 20 L. Ed. 393. The court passes upon all questions, both of law and fact, in a summary way. The person restrained is the central figure in the transaction. The proceeding is instituted solely for his benefit. It is not designed to obtain redress against anybody, and no judgment can be entered against anybody. There is no plaintiff and no defendant, and hence there is no suit, in a technical sense. The judgment simply fixes the status of the person for whose benefit the writ was issued ; and, while any one disobeying the judgment may be dealt with as for a contempt, the judgment does not fix the rights of any one in- terested, further than to declare that the person detained must be restored to liberty. The respondent, in his answer to the writ, seeks simply to justify his conduct, and relieve himself from the imputation of having imprisoned without lawful authority a per- son entitled to his liberty. He comes to no issue with the applicant for the writ. He answers the writ. The applicant may traverse the answer, and thus take issue with the respondent as to the truth or legal effect of the facts which he sets up. If, upon an inves- tigation into the matter, it appears that the detention was without color of authority the person detained will, of course, be dis- charged ; and he may bring a civil action for damages, or prosecute the person by whom he was restrained of his liberty for false im- prisonment. But the proceeding itself is not in any sense a suit be- tween the applicant and the respondent. Our habeas corpus law, as above stated, is made up partly of the common law and partly of the statute of Charles, with the changes that have been made from time to time by the General Assembly. Such portions of this law as are material in the present investigation will be referred to in the appropriate places. It is certain that there is nothing in the law which takes away any of the substantial benefits of the Eng- lish statute, or modifies it in any material respect. 2. But while the writ of habeas corpus is a "writ of right," it did not, either under the common law or the statute of Charles, issue as a matter of course, but only on probable cause shown. It was, under the English practice, incumbent upon the party moving for the writ to make a prima facie showing, under oath, authoriz- ing the discharge of the person restrained of his liberty. 4 Bacon 's Ab. p. 568 ; 1 Tidd's Pr. p. 346. And this is also the rule in the courts of America. Church, Hab. Cor. § 92; 25 Am. Dig. (Cent. Ed.) cols. 995, 996, § 55; 2 Spell. Extra. Rel. §§ 1193, 1318. Penn. Code, § 1211, provides how such an application shall be made, and what shall be its contents, and the application must state, among other things, "the cause or pretense of the restraint, and, if under pretext of legal process," a copy of the process, if possible, must ■142 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. be annexed to the petition ; and the application must contain ' ' a distinct averment of the alleged illegality in the restraint, or the reason why the writ of habeas corpus is sought." When Judge Montgomery, in Broomhead v. Chisolm, 47 Ga. 392, used the lan- guage that every judge whose duty it is to grant the writ, "must do so when any person shall apply for it," he, of course, did not mean to say that the application need not state sufficient facts to authorize the Avrit to issue, and the application with which the learned judge was dealing in that case met unquestionably the re- quirements of the rule just referred to. Mr. Justice Bleckley, in Perry v. McLendon, 62 Ga. 604, says that the writ should b? issued, "provided the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal." It is therefore the duty of the court in every case, before issuing the writ, to inspect the application, to see if it con- tains sufficient averments and is properly verified. If it lacks these essentia] requisites, he should decline to issue the writ. If it does not, it is " his duty to grant it, ' ' and for a failure to do so the law imposes a penalty upon him. Pen. Code 1895, § 1234. The pro- visions of this section just cited as to the imposition of a penalty and the character of the penalty are, in substance, what was pro- vided in the act of Charles II. Cobb's Dig. p. 1131, § 10 ; Schley's Dig. p. 275. But we know of no law which authorizes either the person against whom the writ is prayed, or any one else, to come into court and object to the issuance of the writ. There is no prec- edent for an objection of this character. It is a matter to be de- termined solely by the judge. And even after the writ has issued, and the respondent has appeared in answer to it, the sufficiency of the petition cannot be tested by a demurrer, though it seems that a motion may be made to quash the writ because of insufficient aver- ments in the petition. 9 Enc. P & P. 1021 ; 2 Spell. Extra. Rel. § 1335. Mr. Church, however, in his work on Habeas Corpus, § 156, p. 241, states that a motion was made to quash the writ on the ground that it had been issued improvidently, before Justice Wil- son, of the queen 's bench, in Canada, and the justice stated : ' ' Even if it were clear to me that I have the power, I do not know that I would exercise it, now that the writ has been returned and filed, and the prisoner is here awaiting my judgment. ' ' See In re Ross, 3 P. R. (Can.) 301. So, states the author, instead of quashing the writ on motion made for that purpose, he discharged the prisoner on defects in the warrant returned. This practice commends it- self very strongly to our minds. When the writ has been answered, and the prisoner produced, why fritter away his rights with tech- nical niceties and rules of pleading? Let it be granted that the writ ought not to be issued until probable cause is shown, when it is issued, even though improvidently, if it accomplishes its pur- pose and results in the production of the person detained, why remand to the place from whence he came a man deprived of his liberty without any color of legal authority, because, forsooth, the Sec. 8 a.] personal security, liberty, etc. 443 petition is defective in form, or even in substance? The writ of habeas corpus is a writ of right, and its beneficent effects ought not to be dissipated by subtle objections and technical niceties. Of course, if the petition clearly shows on its face that the deten- tion is lawful, there is nothing to investigate. But if it is merely lacking in that fullness which the statute and good pleading re- quires, and shows that a claim is made by the appli(;ant that the detention is illegal, the writ ought not to be quashed after the person detained has been brought into court, but an inquiry into the cause of the detention ought to be instituted. Especially ought this rule to be applied where the petition is made by a person other than the party restrained of his liberty. Let the party detained be given an opportunity to show that his detention is not lawful. It may be said in the administration of the law due forms must be observed. This is true, but this writ was framed to meet an emer- gency and for a special purpose, and was intended to be used in a summary and speedy manner, and its beneficent purposes and wholesome effects must not be lessened by legal refinements. See, in this connection, Broomhead v. Chisolm. 47 Ga. 390. . . There is one other point, which, though not made in the record or suggested in the argument, we have thought it proper to no- tice, for the benefit of those who may in the future apply for the writ under similar circumstances as those appearing in the pres- ent proceeding. The petition prayed for the issuance of the writ to the "Georgia Iron & Coal Company, a corporation, . . . and its officers, agents, and employes who have the charge and custody of the said "Wess Simmons." The writ was directed to the corporation, "and to its ofBcers, agents, and employes." It was served upon the superintendent of the corporation. The writ must be directed to the person having the person in custody, whether he be an officer of the law or a private individual. 4 Ba- con 's Ab. p. 581; 15 Am. & Eng. Bne. L. (2d ed.), p. 194. "If this cannot readily be determined, it may be addressed to any one countenancing or consenting to the illegal detention or restraint." Church, Hab. Cor. § 106, p. 167. We find no precedent in the books, however, for directing the Avrit to a corporation ; and, from the very nature of the ease, it would seem to be clear that it can- not be so directed. See, in this connection. Hall Machine Co. v. Barnes, 115 Ga. 945, 946, 42 S. E. 276. A corporation is an arti- ficial being — an entity — and it is not conceivable how it can re- strain the liberty of anybody. It, of course, could authorize the detention, and would doubtless be liable in a civil action for so do- ing. But how could a .judgment ordering a corporation to dis- charge a person wrongfully held in custody be enforced 1 The cor- poration could not be attached for contempt, and we do not think that an officer or servant of the corporation could be attached for refusing to obey a writ directed to the corporation. Restraining another's liberty is necessarily a matter of individual conduct and responsibility, and it would certainly be no defense, on an attach- ment for contempt against an individual, that the restraint was 444 PERSONxVL SECURITY, LIBERTY, ETC. [Cll. 5. ordered by a corporation, or even by another individual. But these views are not of serious moment now, for, applying the rule of liberal construction heretofore referred to, we think the writ may be treated as directed to the individuals concerned in the ille- gal restraint of the prisoner. It was directed to the agents of the corporation, and served upon one of such agents, who responded, and presumably brought the prisoner into court; and hence the irregularity in the address of the writ presented no obstacle to an inquiry into the cause of the restraint. But such a method of ad- dressing a writ is irregular and improper. It should be directed to the individual having the actual physical custody and control of the person detained, and if this cannot readily be done, where the application is made by a third party, to some one who is manifestly a party to the detention, and aids and abets it. Judgment re- versed. That habeas corpus proceedings are, to all intents and purposes, civil actions, both under the common law and Code practice, see Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. 871; also 85 N. W. 1046, 62 L. R. A. 700. See "Habeas Corpus," Century Dig. §§ 1, 46, 64; Decennial and Am. Dig. Key No. Series §§ 1, 48, 72. EX PARTE WATKINS, 3 Pet. (U. S.) 193, 202, 203. 1830. Habeas Corpus When Applicant in Custody Under Final Judgment of a Court of Competent Jurisdiction. [Habeas corpus in the supreme court of the United States to inquire into the legality of the confinement of Tobias Watkins, who was con- fined in prison under the final judgment of the circuit court of the United States. The imprisonment was claimed to he illegal because the indictment, upon which the conviction was had, charged no offense of which the court had jurisdiction. After stating that there is no doubt of the power of the supreme court to award a writ of habeas corpus un- der the 14th section of the Judiciary Act, and that the only question is, "whether this be a case in which that power ought to be exercised, the opinion proceeds : ] Marshall, C. J. . The writ of habeas corpus is a high prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment. The English judges, being orig- inally under the influence of the crown, neglected to issue this writ where the government entertained suspicions which could not be sustained by evidence ; and the writ, when issued, was sometimes disregarded or evaded, and great individual oppression was suf- fered in consequence of delays in bringing prisoners to trial. To remedy thi^ evil, the celebrated habeas corpus act of the 31st Charles II. was enacted, for the purpose of securing the benefits for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common Sec. 8 a.] personal security, liberty, etc. 445 law. This statute excepts from those who are entitled to its bene- fits persons committed for felony or treason, plainly expressed in the warrant, as well as pei'sons convicted or in execution. The exception of persons convicted applies particularly to the application now under consideration. The petitioner is detained in prison by virtue of the judgment of a court, which court pos- sesses general and final jurisdiction in criminal cases. Can this judgment be re-examined upon a writ of habeas corpus? This writ is, as has been said, in the nature of a writ of error, which brings up the body of the prisoner, with the cause of commitment. The court can undoubtedly incjuire into the sufficiency of that cause ; but if it be the judgment of a court of competent jurisdic- tion, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause 1 Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered ? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose juris- diction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it. The counsel for the prisoner admit the application of these prin- ciples to a case in which the indictment alleges a crime cognizable in the court by which the judgment was pronounced; but they deny their application to a case in which the indictment charges an offense not punishable criminally, according to the law of the land. But with what propriety can this court look into the indict- ment? We have no power to examine the proceedings on a writ of error, and it would be strange, if, under color of a writ to lib- erate an individual from unlawful imprisonment, we could sub- stantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judgment cannot be un- lawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, al- though it should be erroneous. The circuit court for the District of Columbia is a court of record, having general jurisdiction over criminal cases. An offense cognizable in any court, is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indict- ment be legally punishable or not, is among the most unquestion- able of its powers and duties. The decision of this c[uestion is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other; and must remain in full force unless reversed regu- larly by a superior court capable of reversing it. . . With- out looking into the indictments tinder which the prosecution against the petitioner was conducted, we are unanimously of opin- 446 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. ion that the judgment of a court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded. That one under sentence of the final judgment of a court of competent jurisdiction will not be discharged under habeas corpus proceedings, see In re Brittain, 93 N. C. 587; but if there be a want of jurisdiction in the court, or if its action be unconstitutional ; or In execution of an un- constitutional law; or if it be void, as distinguished from erroneous or voidable — one may be discharged though in custody under the final judgment of a court. Ex Parte Siebold, 100 U. S. 371; State v. Queen, 91 N. C. 659; In re Boyett, 136 N. C. 415, 48 S. E. 789 (this case involving the detention of the criminal insane under an unconstitutional statute); Re Tani, 91 Pac. 137, 13 L. R. A. (N. S.) 518; 1 lb. 540, and note. See "Habeas Corpus," Century Dig. § 19%; Decennial and Am. Dig. Key No. Series § 22. IN RE SCHNEIDER, Petitioner, 148 U. S. 162, 13 Sup. Ct. 572. 1892. Haieas Corpus as a Substitute for Writ of Error or Appeal. [Habeas corpus in supreme court of the United States. The petition set out, inter alia, that the prisoner was detained under the judgment and sentence of the supreme court of the District of Columbia, sentence of death having been passed upon him by such judgment; that the judg- ment was unlawful, void and unconstitutional, in that the prisoner had not been allowed a proper trial by jury, because certain challenges for cause were overruled by the judge — setting forth the causes of challenge assigned at the trial,.] The Chief Justice Fuller.- Leave to file petition for writs of habeas corpus and certiorari is denied. The groiuid of the appli- cation does not go to the jurisdiction or authority of the supreme court of the district, and mere error cannot be review:ed in this proceeding. Ex parte Parks, 93 U. S. 18 ; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542 ; Ex parte Wilson. 114 U. S. 417, 5 Sup. Ct. 935 ; Nielson, pet. 131 U. S. 176, 9 Sup. Ct. 672. That habeas corpus cannot be used as a writ of error or as an appeal, to correct errors in criminal cases, see In re Schenck, 74 N. C. 607; Ter- linden v. Ames, 184 U. S. 270, 278, 279, 22 Sup. Ct. 484. One unlawfully confined under a final judgment — his sentence being for a longer term than that allowed by the statute prescribing the punishment — may have relief by certiorari. State v. Lawrence, 81 N. C. 523. See "Habeas Cor- pus," Century Dig. § 25; Decennial an Am. Dig. Key No. Series § 30. WALES v. WHITNEY, 114 U. S. 564, 571-575, 5 Sup. Ct. 1050. 1884. What Detentions May, and What May Not, Be Believed hy Habeas Cor- pus. Wives, Children, etc. Physical and Moral Restraint. [Appeal from a judgment of the supreme court of the District of Co- lumbia refusing a writ of habeas corpus to Wales from an order of ar- rest issued by the secretary of the navy. Affirmed. The petitioner, Wales, was a medical director in the United States navy and was placed under arrest by the secretary of the navy by an order addressed to him, as follows: " . You are hereby placed un- Sec. 8 a.] personal security, liberty, etc. 447 der arrest, and you will confine yourself to the limits of the city of Wash- ington." This was all. There was no physical arrest or detention ot the petitioner.] Mr. Justice Miller. . . . The writ of habeas corpus is not a writ of error, though in some cases in which the court issuing it has appellate power over the court by whose order the petitioner is held in custody, it may be used with the writ of certiorari for that purpose. In such case, however, as the one before us, it is not a writ of error. Its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the cause of it, and if the alleged cause be unlawful, it must then discharge the prisoner. There is no very satisfactory definition to be found in the adjudged cases of the character of the restraint or imprisonment suffered by a partj' applying for the writ of habeas corpus, which is necessary to sustain the writ. This can hardly be expected from the variety of restraints for which it is used to give relief. Confinement under civil and criminal process may be so relieved. Wives restrained by husbands; children withheld from the proper parent or guard- ian, persons held under arbitrary custody by private individuals, as in a madhouse, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus. Ob- vioush'. the extent and character of the restraint which justifies the writ, must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed. In the case of a man in the military or naval service, where he is, whether as an ^fficer or a private, always more or less subject in his movements, by the very necessity of military rule and sub- ordination, to the orders of his superior officer, it should be made clear that some unusual restraint upon his liberty of personal movement exists to justifj' the issue of the writ; otherwise every order of the superior officer directing the movements of his sub- ordinate, which necessarily to some extent curtails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek relief from obedience by means of a writ of habeas corpus. Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it. The class of cases in which a sher- iff or other officer, with a writ in his hands for the arrest of a per- son whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest, and the power to enforce it. If the party named in the writ resists or at- tempts to resist, the officer can summon by-standers to his assist- ance, and may himself use personal violence. Here the force is imminent and the party is in presence of it. It is physical power which controls him, though not called into demonstrative action. 448 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. It is said in argument that such is the power exercised over the appellant under the order of the secretary of the navy. But this is, we think, a mistake. If Dr. Wales had chosen to disobey this order, he had nothing to do but take the next or any subsequent train from the city and leave it. There was no one at hand to hin- der him. And though it is said that a file of marines or some proper officer could have been sent to arrest, and bring him back, this could only be done by another order of the secretary, and would be another arrest, and a real imprisonment under another and distinct order. Here would be a real restraint of liberty, quite different from the first. The fear of this latter proceeding, which may or may not keep Dr. Wales within the limits of the city, is a moral restraint which concerns his own convenience, and in re- gard to which he exercises his own will. The present case bears a strong analogy to Dodge's Case in 6 Mart. (La.) 569. It appeared there that the party who sued out the writ had been committed to jail on execution for debt, and hav- ing given the usual bond by which he and his sureties were bound to pay the debt if he left the prison bounds, he was admitted to the privilege of those bounds. The plaintiff in execution failing to pay the fees necessary to the support of the prisoner, the latter sued out a writ of habeas corpus. That eminent jurist. Chief Jus- tice Martin, said, on appeal to the supreme court : " It appears to us that the writ of habeas corpvis was improperly resorted to. The appellee was under no physical restraint, and there was no neces- sity to recur to a court or judge to cause any moral restraint to cease. The sheriff did not restrain him, since he had admitted him to the benefit of the bounds ; the doors of the jail were not closed on him. and if he was detained it was not by the sheriff or jailor. If his was a moral restraint it could not be an illegal one. The ob- ject of the appellee was, not to obtain the removal of an illegal re- straint from a judge, but the declaration of the court that the plaintiffs in execution had by their neglect lost the right of detain- ing him. A judgment declaring such neglect, and pronouncing on the consequences of it, was what the appellee had in view." The judgment awarding the writ was reversed. The analogy to the case before us is striking. A very similar case was passed upon by the supreme court of Pennsylvania in Respublica v. Arnold, 3 Yeates, 263. A party who had been indicted for arson, and had given bail for his appear- ance to answer the indictment, applied, while out under bail, to be discharged by writ of habeas corpus, on the ground of delay in the prosecution. The c^burt held that the statute of Pennsylvania, which was a re-enactment of the habeas corpus act of 31st Charles II., c. 2. spoke of persons committed or detained, and clearly did not apply to a person out on bail. And Mr. Justice Teates very pertinently inquires, "Would not a habeas corpus directed to the bail of a supposed offender be perfectly novel?" And Smith, J., said that the inclination of his mind was that habeas corpus could not lie to the bail. Sec. 8 a.] personal security, liberty, etc. 449 111 a note to the cases of Rex v. Dawes and Rex v. Kessel, 1 Burr. 638, the same principle is stated, though by ^vhom the note is made does not appear. Both these persons were brought before Lord Mansfield, in the king's bench, on a rule against the commis- sioners to enforce an act of parliament to increase the army. In both cases the ground on which the discharge was asked, was that they were illegally pressed into the service. Lord ilansfield dis- charged one because his statement was found to be correct, and refused the other because his statement was not true. The note to the report, apparently in explanation of the fact that they were not brought before the court by writ of habeas corpus, and that no objection was taken to the rule by the commissioner, says; "Neither of these could have brought a habeas corpus; neither of them was in custody. Dawes had deserted and absconded, and Kessel had been made a corporal. No objection was made by the commissioner to the propriety of the method adopted." Chief Baron Comyn cites the cases as showing that the parties could not bring habeas corpus, because they were not in custody. 4 Com. Dig. 313, "Habeas Corpus" B. . . . All these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary. In case of a person who is going at large, with no one controlling or watching him, or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the alleged prisoner, or by his capture and forcible traduction into the presence of the court. The record in the present case shows that no such thing was done. The secretary denies that "Wales is in his custody, and he does not produce his body ; but "Wales, on the direc- tion of the secretary, appears without any compulsion, and reports himself to the court and to Justice Cox, as he did to the court-mar- tial. We concur with the supreme court of the district in the opinion that the record does not present such a case of restraint of personal liberty as to call for discharge by a writ of habeas corpus. In thus deciding we are not leaving the appellant without remedy, if his counsel are right in believing the court-martial has no juris- diction of the offense of which he is charged. He can make that objection to that court before trial. He can make it before judg- ment after the facts are all before that court. He can make it be- fore the reviewing tribunal. If that court finds him guilty, and imposes imprisonment as part of a sentence, he can then have a writ to relieve him of that imprisonment. If he should be de- prived of office, he can sue for his pay and have the question of the jurisdiction of tiie court which made such an order inquired into in that suit. If his pay is stopped, in whole or in part, he can do the same thing. In all these modes he can have relief if the court is without jurisdiction, and the inquiry into that jurisdiction will be more satisfactory after the court shall have decided on the na- Remedies — 29. 450 PERSONAL SECURITY, LIBERTY, ETC. [C'/l. 5. ture of the offense for which it punishes him than it can before. And this manner of relief is more in accord with the orderly ad- ministration of justice and the delicate relations of the two classes of courts, civil and military, than the assumption in advance by the one court that the other will exercise a jurisdiction which does not belong to it. The judgment of the supreme court of the District of Columbia is affirmed. A person confined under arrest and bail proceedings in a civil action may resort to habeas corpus to test the legality of his detention. Claf- lin V. Underwood, 75 N. C. 485; Stewart v. Bryan, 121 N. C. 46, 28 S. E. 18. See "Habeas Corpus," Century Dig. §§ 10-12; Decennial and Am. Dig. Key No. Series §§ 8-11. IN BE NEAGLE, Petitioner, 135 U. S. 1, 69, 75, 10 Sup. Ct. 658. 1889. Poioer of United States Courts to Discharge Those in Custody Under the Laws and Judicial Proceedings of a State. [Appeal to the supreme court of the United States by the sheriff of ' San Joaquin county, California, from a judgment of the circuit court of the United States, discharging Neagle from the custody of the sheriff. Affirmed. At the time such order was made, the sheriff held Neagle under process of the courts of California on a charge of murder. Under orders from the executive department at Washington, Neagle, a deputy United States marshal, had been directed by the United States marshal to protect Justice Field from threatened violence. In the dis- charge of this duty Neagle had killed Terry as a matter of necessity to prevent an assault — apparently with intent to kill — upon Justice Field. Thereupon Neagle was confined in jail under a commitment duly issued by a justice of the peace of San Joaquin county, upon a charge of mur- der. Neagle then sued out a writ of habeas corpus. Only so much of the opinion as bears upon the power of the courts of the United States in such cases, is here inserted.] Mr. Justice I\Iillee. . It is urged against the relief sought by this writ of habeas corpus that the question of the guilt of the prisoner of the crime of murder is a question to be deter- mined by the laws of California, and to be decided by its courts, and that there exists no power in the government of the United States to take away the prisoner from the custody of the proper authorities of the state of California, and carry him before a judge of the court of the United States, and release him without a trial by jury according to the laws of the state of California. That the statute of the United States authorizes and directs such a proceeding and such a judgment in a case where the offense charged against the prisoner consists in an act done in pursuance of a law of the United States, and by virtue of its authority, and where the imprisonment of the party is in violation of the constitu- tion and laws of the United States, is clear by is express language. The enactments now found in the Revised Statutes of the United States on the subject of the writ of habeas corpus are the result of a long course of legislation forced upon congress by the attempt of the states of the T^nion to exercise the power of imprisonment Sec. 8 a.] peesonal security, liberty, etc. 451 over officers and other persons asserting rights under the federal government or foreign governments, which the states denied. . . . The result at which we have arrived upon this examina- tion is that, in the protection of the person and the life of Mr. Jus- tice Field while in the discharge of his ofHcial duties, Neagle was authorized to resist the attack of Terry upon him ; that Neagle was correct in the belief that, without prompt action on his part, the assault of Terry upon the .judge would have ended in the death of the latter; that, such being his well-founded belief, he was justi- fied in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim ; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing ; and that he is not liable to answer in the courts of Califor- nia on account of his part in that transaction. We therefore af- firm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of San Joaquin county. Habeas corpus lies to discharge one in custody under process of a state court, when such action of the state court is in violation of the constitution of the United States, or of a treaty, or law thereof: but this power is exercised with caution and under the discretion of the court, rather than as a matter of course, even in those cases in which the power clearly exists. Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, reviewing many cases; Ex parte Young, 209 U. S. 123, 167, 28 Sup. Ct. 441, involving the Minnesota passenger rate law of 1907; Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472, involving the North Carolina pas- senger rate law of 1907 — for the decision of the state supreme court on the validity of this law, see State v. So. R. R. Co., 145 N. C. 495, 59 S. B. 570. See "Habeas Corpus," Century Dig. §§ 38-45; Decennial and Am. Dig. Key No. Series § 45; "Courts," Century Dig. §§ 1376-1385. TARBLE'S CASE, 13 Wallace, 397, 401, 402, 409, 410. 1871. Power of State Courts to Discharge Those in Custody Under the Laws and Judicial Proceedings of the United States. [Proceeding by habeas corpus in a state court for the discharge of Tarble held in custody by a recruiting officer of the United States as an enlisted soldier. The writ was issued by the court commissioner of Dane county, Wisconsin, and directed to the United States officer, who brought Tarble before the court, but pleaded want of jurisdiction. Tar- ble claimed to be under 18 years of age aud to have been duped into en- listing. The court ordered the discharge of Tarble from custody. The officer carried the case to the supreme court of the state where the order of the lower court was affirmed. The case was then carried to the su- preme court of the United States by writ of error sued out by the United States government. The question presented is: Can one in custody un- der the laws of the United States be discharged by a state court under habeas corpus proceedings? Only so much of the opinion as bears upon the question, is here inserted.] Mr. Justice Field. The important question is presented by this case, whether a state court commissioner has .jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of sol- 452 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. diers into the military service of the United States, and to dis- charge them from such service when, in his judgment, their enlist- ment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus : "Whether any judicial oificer of a state has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the author- - ity, or claim and color of authority, of the United States, by an officer of that government. . . . State judges and state courts, authorized by laws of their states to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally con- fined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of au- thority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the state ; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show dis- tinctly that the imprisonment is under the authority, or claim and color of authority, of the United States, and to exclude the sus- picion of imposition or oppression on his part. And the process or orders, under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of authority, of the United States, and not under the mere pretense of having such authority. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, "grows necessarily," says Mr. Chief Justice Taney, "out of the complex character of our govern- ment and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its power, and each within its sphere of action, prescribed by the con- stitution of the United States, independent of the other. But, after the return is made, and the state judge or court judicially ap- prised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under state- authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress." . . . It follows, from the views we have expressed, that the court Sec. 8 a.] personal secukity, liberty, etc. 453 commissioner of Dane county was without jurisdiction to issue the writ of habeas corpus for the discharge of the prisoner in this case, it appearing, upon the application presented to him for the wriL, that the prisoner was held by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the national govern- ment ; and the same information was imparted to the commissioner by the return of the officer. The commissioner was, both by the application for the writ and the return to it, apprised that the prisoner was within the dominion and jurisdiction of another gov- ernment, and that no writ of habeas corpus issued by him could pass over the line which divided the two sovereignties. The con- clusion we have reached renders it unnecessary to consider how far the declaration of the prisoner as to his age, in the oath of enlist- ment, is to be deemed conclusive evidence on that point on the re- turn of the writ. Judgment reversed. See Dillingham v. Boolier, 163 Fed. 696, 18 L. R. A. (N. S.) 956, and note,. Tlie opposite of tlie ruling in the principal case was held by Pearson, C. J., in a case involving the same question of conflict of authority be- tween the state and the Confederate States government. In re Bryan, 60 N. C. 1. One who is in the custody of state officials under extradi- tion proceedings, may be discharged under habeas corpus issued by either a state or federal court, although the detention is necessarily under color of authority derived from the constitution and laws of the United States, for from that source alone is interstate extradition de- rived. In such cases, however, the person is not in the custody of, or under restraint by, an offlcer of the United States. Roberts v. Reilly, 116 U. S. 80, at pp. 94, 95, 6 Sup. Cf. 291; Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. 544; In re Sultan, 115 N. C. 57, 20 S. E. 375. So it Is when one is in custody under international extradition proceedings, though in such cases the courts are to some extent circumscribed in the exercise of their powers. Terlinden v. Ames, 184 U. S. 270, 278 et seq., 22 Sup. Ct. 484. One wrongfully brought into a state, with or without extradi- tion proceedings, and who is In its custody under a criminal charge, will not be released on habeas corpus on account of irregularity in such pro- ceeding. Ex parte Davis, 103 S. W. 891, 12 L. R. A. (N. S.) 225, and note; 12 lb. 227. See "Habeas Corpus," Century Dig. §§ 40-42; Decen- nial and Am. Dig. Key No. Series § 42. STATE V. HERNDON, 107 N. C. 934, 12 S. E. 268. 1890. Duty of Judge in Habeas Corpus Proceedings. Rights of Prisoner on Refusal to Discharge Him. Appeal. Certiorari. [Application to a judge of the superior court for a writ of habeas cor- pus. Upon return of the writ the judge refused to examine witnesses, with a view to admitting the prisoner to bail, upon the ground that a true bill for murder had been found by the grand jury, which, per se, showed probable cause for detaining the prisoner in jail. The prisoner was, therefore, remanded to jail. Thereupon the prisoner applied to the supreme court for a writ of certiorari to review this action of the judge. A copy of the record being filed with the petition for a certiorari and taken, by consent, as a return to the writ, the court proceeded to pass upon the errors assigned. Reversed.] 454 PERSONAL SECURITY, LIBERTY, ETC. [CJl. 3. Clark, J. If the judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies either in favor of the state or the petitioner. Walton V. Gatlin, 60 N. C. 310; State v. Miller, 97 N. C. 451, 1 S. E. 776. The quantum of evidence, and the number of witnesses to be ex- amined, must necessarily be left also to the sound discretion of the judge who hears the writ, and his action in that regard cannot be reviewed. "When, however, on the return of the writ, the judge declines to hear evidence because an indictment for a capital of- fense has been foimd against the petitioner, this presents a ruling of law which the petitioner is entitled to have reviewed by this court. The statute nowhere provides for an appeal in such case, but the constitution (article 1, § 18) guaranties the writ of habeas corpus, and if such ruling has the effect to deny its efficacy to any one who, on investigation of the evidence, might have been entitled to bail, this court by virtue of the constitution (article 4, § 8) has "the power to issue any remedial writ necessary to give it a gen- eral supervision and control over the proceedings of the inferior courts. ' ' It appearing that, upon the return of the writ, the judge declined to hear evidence or investigate the charge, the writ of cer- tiorari should issue that we may be further advised concerning the matter. Walton v. Gatlin, supra ; Ex parte Biggs, 64 N. G. 202 ; State V. Jefferson, 66 N. C. 309. . . The judge having re- fused to hear the evidence, and to pass upon the right of the pris- oner to be admitted to bail, committed error, and it must be so ad- judged. Lynch v. People, 38 111. 494 ; Com. v. Rutherford, 5 Rand. (Va.) 646; Lumm v. State, 3 Ind. 293; People v. Cole, 6 Park. Grim. R. 695 ; 2 Hawk. P. C. c. 15, § 79 ; Kurd, Hab. Corp. 439 ; Church, Ilab. Corp. p. 540. There are other cases, as where the prisoner is so sick as to be in danger of his life, or the prosecution is unreasonably delayed, and the like, in which the prisoner has been let to bail after indictment found. Kirk's Case, 5 Mod. 454; U. S. V. Jones, 3 Wash. C. C. 224, Fed. Gas. No. 15,495 ; Bac. Abr. "Bail in Criminal Gases," D; ITurd, Hab. Corp. 445. But these and like cases stand on a different footing from the present appli- cation, and are only authority that a habeas corpus may lio after indictment found for a capital offense. A statutory remedy is now given where the trial is unreasonably delayed by Code, § 1658. In a recent historical case, Jefferson Davis, after an indictment found for treason, was admitted to bail by the United States court. Where the charge is of a capital felony, which is prima facie not bailable, the courts are very slow to admit to bail, for there is good authority that "all that a man hath will he give in exchange for his life," and, after indictment foimd, it is only in a clear case, and with great caution, that a judge will admit to bail ; for, while the indictment is no presumption of guilt on the trial before the petit jury, it is otherwise in the application for bail. The pre- sumption then is in favor of the correctness of the action of the grand jury, and it may be that testimony was before them, which Sec. 8 a.] personal security, liberty, etc. 455 is not produced before the judge. We merely decide that the find- ing of the true bill does not preclude the application. Of course, after indictment found, the judge cannot absolutely discharge the prisoner in any case, however clear a case of innocence may be made out, but must require his appearance at the next term of court. . During the civil war, President Lincoln practically suspended the privileges of the writ of habeas corpus. Chief Justice Taney issued a writ of habeas corpus, from the circuit court of Maryland, directing that the body of one in the custody of the officers of the United States army be brought before him. The officers, acting under the orders of the presi- dent as commander in chief of the army, refused to obey the writ. The chief justice wrote an opinion in which he held that the president's action was unlawful, because the power to suspend the privileges of the writ of habeas corpus was vested exclusively in Congress. As the writ was still disobeyed, the chief justice declared that, having exhausted the powers of the judiciary, he could do no more. The writ was never obeyed. Merryman's Case, Taney's Circuit Court Rep. 246, Fed. Cas. No. 9,487. For similar action by Chief Justice Pearson, see Ex parte Moore and others, 64 N. C. 802, 810. After discussing the curt refusal of Col. Kirk of the state militia, to obey the writ of habeas corpus issued by the chief justice^ — Kirk's refusal being in obedience to the orders of the governor, as commander in chief of the militia — the chief justice says: "If the sheriff demands the petitioner of Col,. Kirk, with his pres- ent orders, he will refuse, and then comes war. The country has had war enough. But it was said by the counsel of the petitioner, 'if in the assertion of civil liberty, war comes, let it come. The blood will not be on your hands, or on ours; it will be on all who disregard the sacred writ of habeas corpus. Let justice be done if the heavens fall.' It would be to act with the impetuosity of youth, and not with the calmness of age, to listen to such counsels. 'Let justice be done if the heavens fall,' is a beautiful figure of speech, quoted by every one of the five learned counsel. Justice must be done, or the power of the judiciary be exhausted; but I would forfeit all claim to prudence tempered with firmness should I, without absolute necessity, add fuel to the flame, and plunge the country into civil war, provided my duty can be fully dis- charged without that awful consequence. Wisdom dictates if justice can be done, 'let heaven stand.' Unless the governor revokes his orders. Col. Kirk will resist; that appears from the affidavit of service. The second branch of the motion, that the power of the county be called out if necessary to aid in taking the petitioner by force out of the hands of Kirk, is as difficult of solution as the first. The power of the county, or 'posse comitatus,' means the men of the county in which the writ is to be executed — in this instance Caswell, and that county is declared to be in a state of insurrection. Shall insurgents be called out by the person who is to execute the writ, to join in conflict with the military forces of the state? It is said that a sufficient force will volunteer from other counties. They may belong to the association, or be persons who sym- pathize with it. But the 'posse comitatus' must come from the county where the writ is to be executed; it would be Illegal to take men from other counties, This is settled law. Shall illegal means be resorted *o in order to execute a writ? . . The writ will be directed to the marshal of the supreme court, with instructions to exhibit it and a copy of this opinion to his excellency the governor. If he orders the petitioner to be delivered to the marshal, well; if not, following the ex- ample of Chief Justice Taney, in Merryman's case, I have discharged my duty; the power of the judiciary is exhausted, and the responsibility must rest on the executive." The state has no anneal from a judgment releasing a prisoner under habeas corpus proceedings. State v. Miller, 97 N. C. 451, 1 S. E. 776; 456 PERSONAL SECURITY, LIBERTY, ETC. [Cli. S. 149 N. C. 436, Whether a prisoner can appeal in such proceedings, or will be forced to resort to a certiorari, is not satisfactorily determined. In State v. Herndon, 107 N. C. 934, 12 S. B. 268, the matter was carried up by certiorari; in Claflin v. Underwood, 75 N. C. 485, the point was waived; in Stewart v. Bryan, 121 N. C. 46, 28 S. B, 18, and In re Boyett, 136 N. C. 415, 48 S. E. 789, the prisoner appealed but whether or not that was the proper practice, is not discussed. See 21 Cyc. 335, 347, note 85. An appeal does lie in cases involving the custody of children. State v. Miller, 97 N. C. 451, 1 S, E. 776; Revisal, § 1854; Walton v. Gatling, 60 N. C. 311; Bx parte Williams, 149 N. C. 436, 63 S. E. 108; and see 2 L. R. A. (N. S.) 244, for the effect of the appeal on the custody of the child. A prisoner may appeal from the circuit court of the United States to the United States supreme court where his petition alleges that he is im- prisoned in violation of the United States constitution, Dimmick v. Tompkins, 194 U. S. 540, 24 Sup. Ct. 780; such appeals are restricted to those cases provided for by sec. 5 of the act of March 3, 1891, In re Len- non, 150 U. S. 393, 14 Sup. Ct. 123. The case of Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472, was carried up by the appeal of the officer from whose custody the prisoner was discharged. See further, on the subject of Habeas Corpus, Injuries to Relative Rights— Husband and Wife, ch. 6, § 1 (a) ; and Parent and Child, ch. 6, § 2 (a). See "Habeas Corpus," Century Dig. §§ 96, 116; Decennial and Am. Dig. Key No. series §§ 107, 114. (b) False Imprisonment. STATE V. LUNSPORD, 81 N. C. 528. 1879. What is, and. What is Not an Imprisonment. [Indictment for false imprisonment. The bill of indictment charged that defendant assaulted the prosecutor and unlawfully and injuriously, against his will and the laws of the state and without any legal war- rant, authority, or reasonable or justifiable cause whatsoever, did im- prison and detain the prosecutor. The jury rendered a special verdict to the effect that defendant and others went to the prosecutor's house in the night, and, under pretense of being strangers in search of a stolen horse, deceived him into riding behind one of the party on a iorse. The defendants were disguised. After going about a quarter of a mile the prosecutor complained of the pain incident to his ride, and he was al- lowed to dismount and go home. The prosecutor went voluntarily. No violence was offered to him, and his only injury was the pain from the rapid ride. The whole thing was a mere practical joke at prosecutors expense. Upon the verdict, judgment of guilty was pronounced by the judge, and the defendant appealed. Reversed,] Ashe, J. False imprisonment is the illegal restraint of the per- son of any one against his will. The common law was so jealous of the personal liberty of the citizen, that it was regarded as a heinous offense, and the infringement of this right in England, under certain circumstances, was visited with severe punishment. False imprisonment generally included an assault and battery, and always at least a technical assault ; and hence the form of the in- dictment, which is for an assault and battery and false imprison- ment ; though there may be a false imprisonment without touching the person of the prosecutor, as where a constable showed a magis- trate's warrant to the prosecutor and desired him to go before the Sec. 8 b.] PERSONAL SECURITY, LIBERTY, ETC. 457 magistrate, which he did, without further compulsion. This was held to be a sufficient imprisonment, because the officer exhibited a warrant for his arrest, and in going with him, he yielded to what he supposed to be a legal necessity. But there must be a detention, and the detention must be unlawful. 3 Blk. 127. The prosecutor in this case went voluntarily with the defend- ants, with the expectation of a reward for his trouble. Instead of walking to the point of destination, a short distance from his house, he preferred to mount on the crupper of one of the horses ridden by some of the party, and after going about one fourth of a mile and discovering that he was the victim of a hoax, he complained of the uncomfortable mode of transportation, and dismounted without objection from any one. He was left all the while to ex- ercise his own free will. There was no violence, no touching of his person, no threat, no intimidation of any sort. And the ruse em- ployed by the defendants to decoy him from his house we do not think was such a fraud as to impress the transaction with the char- acter of a criminal act. It seems to have been one of those practical jokes that is sometimes practised without any intention of doing harm or violating the law; and we are of the opinion that there was no violation of the criminal law in this case. There is error. Let this be certified, etc. Reversed. What amounts to an imprisonment is discussed in 20 L. R. A. (N. S.) 967, and note. See "False Imprisonment," Century Dig. § 122; Decennial and Am. Dig. Key No. Series § 43. BRYAN V. STEWART, 123 N. C. 92, 96-98, 31 S, B. 286. 1898. When Trespass and. When Case the Remedy. Remedy Under Code Prac- tice. Void and Erroneous Process. [Action for damages for false imprisonment. Judgment against the plaintiff, and he appealed. Affirmed. Stewart caused Bryan to be arrested under ancillary proceedings in arrest and bail. Bryan was discharged under habeas corpus proceed- ings, upon the ground that the clerk who issued the warrant of arrest, had no authority for doing so. Bryan then brought this action for false imprisonment against Stewart. By consent the judge tried the case without a jury. He found as a fact that Stewart caused Bryan to be ar- rested and imprisoned wrongfully and unlawfully. In the case on ap- peal it was admitted that this action was not for malicious prosecution, nor for the malicious abuse of legal process, but for the alleged false imprisonment under Illegal process.] FuECHES, J. ... At common law there were two actions for an illegal arrest. One was where there was no legal excuse or justification for making the arrest, as where it was made without legal process, or, if made under the form of legal process, where the same was absolutely void. This was an action of trespass vi et armis. The other was where the process was erroneous, but not absolutely void: This was an action of trespass on the case, and was subject to the same rules and requirements as if it were an 458 PERSONAL SECURITY, LIBERTY, ETC. [CJt. 5. action for malicious prosecution. Bish. Noncont. Law, § 211 ; Carman v.-Emerson, 18 C. C. A. 38, 71 Fed. 264; Pol. Torts, 148. If the process is absolutely void, it will not protect the defendant who procured it to be issued, nor will it protect the officer making the arrest; but if the process is erroneously issued, but not void, it will protect the officer making the arrest. Murfree, Sheriffs, § 929 ; Pol. Torts, 148. And it will protect the defendant, who procured it to be issued, in an action vi et armis for false imprison- ment, though such process, erroneously issued, will not protect the party procuring it to be issued from an action on the case, in the nature of malicious prosecution, where the want of probable caus3 and mahce are alleged and shown. Newell, Mai. Pros. 199, 200 ; Pol. Torts, 148. Under the present code practice, we are of the opinion that what was formerly an action vi et armis and an action of trespass on the case, in the nature of false imprisonment, might be joined with each other in the same action, and declared on in the same com- plaint. But, if this were done, still the allegation, on the case in the nature of malicious prosecution, would have to be sustained by evidence of malice and the Avant of probable cause, to entitle the plaintifE to recover. But by the agreement of the parties, entered of record, the action of trespass on the case, in the nature of an action for malicious prosecution, is eliminated and taken entirely out of consideration in this case, and it is left to be considered as an action of trespass vi et armis for false imprisonment alone. This being so, the correctness of the ruling of the court below and the defendant's liability for damages depend upon the question a-; to whether the process upon which the plaintiff was arrested was void or only erroneous ; and this depends upon the fact as to whether the clerk who issued it was acting in a judicial capacity, or simply in the discharge of a ministerial duty. . That the clerk, in issuing the order of arrest, was acting in his judicial capacity, is sustained in Austin v. Vrooman (N. Y. App.) , 28 N. E. 477. Bish. Noncont. Law, § 211. It is admitted that the clerk had the right — the jurisdiction — to issue the process under which the plaintiff was arrested; and we are clearly of the opinion that, in doing so, he acted in his judicial capacity, and not simply as a ministerial officer. This being so, the capias under which the plain- tiff was arrested was not void, although it was erroneous. Tucker V. Davis, 77 N. C. 330; Carman v. Emerson, supra; Pol. Torts, 148; Bish. Noncont. Law, § 211. This process, having been issued by a judicial officer, in the exercise of the judicial functions of his office, was not void (though erroneous), and was a justification for the plaintiff's arrest in this action. . . Affirmed. See "Action," Century Dig,. §§ 236-255; Decennial and Am. Dig. Key No. Series, § 30; "False Imprisonment," Century Dig. §§ 8-10, 32-42, 48-50; Decennial and Am. Dig. Key No. Series § 7. Sec. 8 b.] PERSONAL SECURITY, LIBERTY, ETC. 459 COLTER V. LOWER, 35 Ind. 285, 9 Am. Rep. 735. 1871. False Imprisonment Distinguished from Malicious Prosecution. [Action for false imprisonment. Judgment against plaintiff, and he' appealed. Reversed. The complaint alleged that the defendant falsely, wrongfully, and unlawfully seized and arrested the plaintiff "and con- fined him in unlawful imprisonment" in jail, no cause for which arrest and imprisonment, nor charge of any kind, having been at any time preferred against the plaintiff in any court; by reason whereof plaintiff suffered in mind, body and estate, etc.. Defendant demurred because the complaint did not allege that the imprisonment was malicious and with- out protiable cause. Demurrer sustained, and plaintiff excepted.] Downey, C. J. . . . The only question for our decision is as to the suiSciency of the complaint, for the court did not pass on the sufficiency of the answer, and therefore that question is not be- fore us as a court of error. It is insisted by the appellees that the complaint is bad for the reason that it does not allege that the im- prisonment was malicious and without probable cause. It must be conceded that if the approved precedents in the best works on pleading are to be received as evidence of what the law is on the subject, the allegation in question is essential. 2 Chit. PL 857, et seq. That the allegation is essential in an action for malicious prosecution, is well understood, and is recognized as the rule by this court. Wilkinson v. Arnold, 11 Ind. 45 ; Ammerman v. Crosby, 26 Ind. 451 ; StancUff v. Palmeter, 18 Ind. 321. But we do not think it essential in an action for false imprisonment, such as the one in question. There is a marked distinction between malicious prosecution and false imprisonment. At common law, the former was the subject of an action of trespass on the case, while for the latter, trespass vi et armis was the remedy. 1 Chit. PI. 133, 167. If the imprison- ment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is ma- licious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment. In Turpin v. Remy, 3 Blackf. 210, it was said by Stevens, J., in delivering the opinion of the court, "an action for a malicious prosecution can only be sup- ported for the malicious prosecution of some legal proceeding, be- fore some judicial officer or tribunal. If the proceedings com- plained of are extrajudicial, the remedy is trespass, and not an ac- tion on the case for a malicious prosecution." In Johnstone v. Sutton, 1 T. R. 544, it is said in speaking of the action for malicioiis prosecution, "there is no similitude or analogy between an action of trespass, or false imprisonment, and this kind of action. An action of trespass is for the defendant's having done that, which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution, which, upon the stating of it, is manifestly legal." The cases for false imprisonment in this court, we think, fully maintain this distinction, and show that malice does not enter into 460 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. consideration in actions for that cause. The case of Taylor v. Mof- fatt, 2 Blackf . 305, was for false imprisonment, and the defendant was held liable because the judge, who awarded an attachment, at his instance, for violation of an injunction, was held to have no jurisdiction to do so, and the defendant was subjected to the pay- ment of three thousand dollars damages. There was no indication of malice. In Hall v. Rogers, 2 Blackf. 429, the defendant was held liable, because the charge on which the arrest and imprison- ment took place was not legally sufficient. See also Wasson v. Can- field, 6 Blackf. 406 ; Poulk v. Slocum, 3 Blackf. 421. No proof of raalice or want of probable cause is necessary to make out a case for false imprisonment. 2 Starkie's Bv. 1112. It frequently hap- pens that false imprisonment includes a battery, but it is obvious that the latter is not necessarily included in the former. 2 Starkie's Ev. 1113. An action for malicious prosecution may be maintained, although there has been no imprisonment. That the plaintiff was assaulted and beaten, or that the arrest and imprison- ment were otherwise accompanied with malice or other indignities, may, no doubt, be given in evidence, as tending to affect the amount of damages. 2 Starkie's Bv. 1114. We regard the complaint as setting out a good cause of action. If there was any legal justification for the acts alleged to have been committed l)y the defendants, it devolves on them to set it up in their defense. The judgment is reversed, with costs, and the -cause remanded. See "False Imprisonment," Century Dig. §§ 2, 87; Decennial and Am. Dig. Key No. Series §§ 3, 20. TAYLOR V. MOPFATT, 2 Blackf., 305. 1830. Judicial Process Void for Want of Jurisdiction. [Moffat was imprisoned for contempt of court. Taylor made the affida- vit upon which the contempt was adjudged. The judge who committed Moffatt had no jurisdiction in vacation to commit for contempt, and this commitment was in vacation. Moftatt sued Taylor for false im- prisonment. Verdict and judgment against Taylor, who carried the case to the supreme court by writ of error. Affirmed.] HoLMAN, J. . . . The merits of the defense made by Taylor depend on the authority of the judge to order the attachment for the contempt. If the judge was acting within his jurisdiction, the plea of Taylor was a bar to the action, without any reference to the manner in which the judge's authority was exercised. Much has l)een said, in this casCj about the ordering an attachment without giving Moffat an opportunity of being heard, and about the com- mitment for an unlimited time ; but we conceive that these are sub- jects that cannot affect the merits of Taylor's defense. For if a judicial officer, whether possessed of a general or a special jurisdic- tion, act erroneously, or even oppressively, in the exercise of his authority, an individual at whose suit he acts is not answerable, as Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 461 a trespasser, for the error or misconduct of the officer. But if a judicial officer, whose jurisdiction is special and limited, transcend his authority, and act in a case of which he has no cognizance, his proceedings are coram non judice, and no person, much less a suitor, can justify under them. . . . In this case, as we learn from the plea of Taylor, the judge awarded the injunction at his chambers, on the 29th of September, 1827. The writ of injunction was issued on the 1st of October ; the affidavits show a vending of merchandise by iloft'at on the 4th, 5th, and 6th of the latter month : and the order for the attachment is dated at the judge's chambers on the 8th. So that, from the fore- going view of the subject, the judge had no jurisdiction of the case at the time he ordered the attachment. The order was a nul- lity, and Taylor could not justify under it. The plea was no bar to the action, and the circuit court very properly sustained the demurrer. See an extensive view of the doctrine of chancery at- tachments in Yates v. The People, 6 Johns. 337, and Yates v. Lans- ing, 9 Johns. 395. . . . Judgment affirmed. A master, such as a railroad company, for instance, is liable for the acts of his servant in causing the unlawful imprisonment of another, when such servant acts within the scope of his authority. The measure of damages in such cases is "actual damages including injury to feelings and mental sufferings, and not punitive damages, unless the arrest was accompanied with malice, gross negligence, insult, or other aggra- vating circumstances." Lovick v. B. R., 129 N. C. 427, 435, 40 S. E. 191, citing Lewis v. Clegg, 120 N. C. 292, 26 S. B. 772, and Neal v. Joyner, 89 N,. C. 287; Levin v. Burlington, 129 N. C. 184. See also as to liability of employer for the acts of his agent or deputy in such cases, Milton v. M. P. R. R. Co., 91 S. 'W, 949, 4 L. R. A. (N. S.) 282, and note.. See "False Imprisonment," Century Dig. §§ 48, 49; Decennial and Am. Dig. Key No. Series, § 7. (c) Malicious Prosecution and Abuse of Legal Process. HOLMES V. JOHNSON, 44 N. C. 44. 1852. Malicious Prosecution Defined. What Damages Must he Shown to Sup- port the Action. [Action on the case for Malicious Prosecution. Submission to arbitra- tion. Award that judgment be entered against the plaintiff on the ground that this action could not be maintained. Motion to set aside the award. Motion overruled, and judgment against plaintiff, from which he appealed. Reversed. The proof was, that the defendant procured a warrant for larceny to be drawn up by a justice of the peace against the plaintiff; but the war- rant was never placed in the hands of an officer and was not further pro- ceeded with.] Battle, J. It is stated in sin elementary work of high authority, 3 Step. N. P. 2274, that "the foundation of an action for a mali- cious prosecution is the malice of the defendant, either expressed or implied; and whatever engines of the law malice may employ to accomplish its evil designs against innocent and unoffending per- 462 PERSONAL SECURITY, LIBERTY, ETC. [Gh. 5. sons, whether in the shape of indictment or information, which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty ; or whether such malice be evinced by malicious arrests, or by exhibiting groundless accusa- tions, merely with a view to occasion expense to the party, who is under the necessity of defending himself against them, the action on the case affords an adequate remedy to the party injured." There are three sorts of damage, any of which would be sufficient to support an action for malicious prosecution : 1st, ' ' The damage to a man's fame, as if the matter thereof be scandalous; 2nd, Where a man is put in danger to lose his life, limb or liberty ; 3rd, Damage to a man 's property, as where he is forced to expend money in necessary charges to acquit himself of the crime, of which he is accused." Per Holt, C. J., in Savile v. Roberts, 1 Ld. Ray. 374. The case before us seems to fall directly within the first class of damages, for which Lord Holt says the action will lie. It cer- tainly cannot be contended, that taking out a warrant upon an accusation of larceny, has no tendency to endamage a man's rep- utation — that the matter whereof he is accused is not scandalous. Yet, if he be not allowed to avail himself of this action, he is en- tirely without remedy. He cannot sue for the slanderous words merely, because they were spoken in the course of a judicial pro- ceeding. 3 Step. N. P. 2565. His reputation, it must be admitted, may be as much injured where the warrant was only sued out from a justice, and not put into the hands of an officer, as if it had been prosecuted to the utmost extent. Nay, morej for in the latter case the party might have vindicated his character by proving his inno- cence. Analogous to this is, we think, the case of a bill of indict- ment preferred and returned ignoramus (Payne v. Porter, Cro. Jac. 490) ; or that of a bill preferred coram non judice. 1 Roll. Abr. Action sur ease, (P) 112. Both upon principle and author- ity then, we think his honor in the court below erred in refusing to set aside the award, and in giving judgment for the defendant. For this error, the judgment mu.st be reversed, and the award set aside. See 9 L. R. A. (N. S.) 171, and note (making a criminal charge which is not followed by arrest). See "Malicious Prosecution," Century Dig. § 8; Decennial and Am. Dig. Key No. Series § 8. GROVE V. BRANDENBURG, 7 Blackford, 234. 1844. Stirring up Vexatious Litigation. [Action of trespass on the case for inciting a person to bring an ac- tion of slander against the plaintiff. Defendant demurred. Demurrer sustained and judgment against plaintiff. Plaintiff carried the case to the supreme court by writ of error. Affirmed. The complaint alleged that the defendant falsely and maliciously in- formed Archibald Estep that plaintiff had said he was a horse-thief; that defendant had wickedly and maliciously procured Estep to sue Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 463 plaintiff for slander for tlie supposed speaking of such words; that de- fendant had testified as a witness in such action for slander and falsely swore that plaintiff had called Estep a horse-thief; by reason of all which Estep obtained a judgment against plaintiff, upon which plaintiff iiad been forced to pay out money, etc. There was a second count to the same effect, omitting the charge that defendant had testified as a witness and the result of the action for slander.] Blackford, J. . . . Both coiuits in this case charge the de- fendant with falsely and maliciously procuring Estep to sue the plaintiff in an action of slander; and the first count also charges the defendant with perjury, in swearing as a witness on the trial of that suit that the plaintiff had spoken the slanderous words, The law is said to be, that if one procures another to sue me ivith- ■out cause, an action lies not against him who sued without cause; hut that for this falsity in procuring my vexation an action well lies. Perren v. Bud. Cro. Eliz. 793 ; Savil v. Roberts, 1 Salk. 13. It must be observed that the suit for vexation, etc., cannot be sus- tained, unless there was no cause for the action which was pro- cured to be instituted. In the present case, the first count is bad, because it shows, by the verdict and judgment set out, that there was good ground for Estep 's action ; and the second is bad for not alleging the failure of that action. The charge of perjury against the defendant in giving testimony, etc., alleged in the first count, does not aid the plaintiff. See Nelson v. Robe, 6 Blackford, 204, and note; Harding v. Bodman, Hutton, 11. Judgment affirmed. See "Torts," Century Dig. §§ 17, 18; Decennial and Am. Dig. Key No. Series §§ 13, 14. PLUMMER V, GHBEN, 10 N. C. 66, 14 Am. Dec. 572. 1824. Malice in Prosecuting One Who is Guilty. What Malicious Prosecutions are Actionable. Probable Cause. [Action on the case for Malicious Prosecution. Judgment against de- fendant, and he appealed. Reversed. Plaintiff proved a state's warrant against him for perjury; that the defendant procured the issuing of the warrant; a bill of indictment on which the defendant was marked as prosecutor; that the bill of indict- ment was indorsed "not a true bill; " and that plaintiff had been thereupon discharged. The judge charged, inter alia, that although probable cause was partly a question of law, yet it was so dependent on facts and circumstances of which the jury were the only judges, that in a case like this the court deemed it most proper to leave it to the jury to say whether the defend- ant had not probable ground for a suspicion amounting to probable cause. The defendant excepted to this charge on the ground that prob- able cause is a question of law, and the judge should not have left it to the jury to say whether reasonable suspicion was probable cause — for that permits the jury to substitute an inference of law for an Inference of fact: but the judge should have defined probable cause and left it to the jury to say, whether, under the definition, it existed in this case upon the facts as the jury should find them to be. The judge below ex- plained to the jury that probable cause by no means meant a good cause; that such circumstances as would warrant a reasonable suspicion in the 464 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. mind of the defendant that plaintiff had committed the crime of which defendant had accused him, and for which defendant had caused him to be prosecuted, would make out a case of probable cause.] Taylor, C. J. The most material ground of this action is, that a legal prosecution was carried on against the plaintiff without probable cause, and this it was incumbent on him to prove ex- pressly, for it cannot be implied. Where provable cause is absent, it is usual to imply malice as well as the knowledge of the defend- ant: but the want of probable cause cannot be implied from the most express malice. If a man prosecute another from real guilt, however malicious his motives may be, he is not liable in this ac- tion ; nor is he liable if he prosecute him from apparent guilt, aris- ing from circumstances which he honestly believes. These princi- ples have been repeatedly laid down and sanctioned, and are nec- essary to be kept in view in considering the nature of the action. 1 T. R. 544. . . As the question of probable cause is com- pounded of law and fact, the defendant had a right to the opinion of the court distinctly on the law, on the supposition that he had established, to the satisfaction of the jury, certain facts. Whether the circumstances were true Avas a question for the jury ; whether, being true, they amounted to probable cause is a question of law. It is true that the court explained to the jury what probable cause was, and explained it correctly ; but then, in the subsequent part of the charge, it is left at large for the jury to say whether the defendant had not this probable ground for suspicion amounting to probable cause. Whereas, the right instruction was, that if the defendant had, in their opinion, this probable ground of suspicion, it amounted in point of law to probable cause. I am of opinion, therefore, that there ought to be a new trial. Whether there was probable cause is a question of law, hut the jury must find the facts which constitute it. If there is evidence tending to show probable cause, the judge must explain what constitutes probable cause and leave the jury to ascertain from the facts whether or not it existed: but where the evidence, if all taken to be true, fails to make out probable cause, the judge should so Instruct the jury. Jones v. R.. R., 125 N. C. at p. 229, 34 S. E. 398, citing the principal case and other au- thorities. See also Moore v. Bank, 140 N. C. 293, 52 S. B. 944. For the rule laid down in the principal case, see 26 Cyc. 22,. See 9 L. R. A. (N. S.) 1087 (when malice may be Inferred). See "Malicious Prosecu- tion," Century Dig. §§ 21, 22, 161, 169; Decennial and Am. Dig. Key No. Series §§ 16, 71, 72. ALLEN V. GREENLEE, 13 N. C. 370. 1830. Malicious Prosecution Distinguished from False Imprisonment. Does Trespass or Case Lie for Malicious Prosecution? [Action on the Case for Malicious Prosecution. Verdict and judg- ment against defendant, and he appealed. Reversed. Defendant had procured the plaintiff's arrest on a charge which de- fendant preferred before a justice of the peace, and, while thus under arrest, the defendant grossly abused the plaintiff, struck him, and spit in his face. Upon examination of the charge the justice discharged the plaintiff. The defendant proved that the plaintiff had done the acts for Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 465 which defendant had prosecuted him before the justice. The judge charged that there was no probable cause shown, and it the defendant maliciously procured the issuing of the warrant for plaintiff's arrest, the jury should find for the plaintiff. The acts for which the defendant prosecuted the plaintiff criminally were not criminal under the law, but mere civil trespasses.] RuPFiN, J. It is proper that the boundaries of actions should not be confounded ; but that for every wrong the appropriate rem- edy sliould be pursued. An action of trespass lies for all injuries of which force is the immediate cause, and for which the defendant cannot produce a justification. If one person cause another to be arrested without process, it is a trespass and false imprisonment. So, if he arrest him upon process that is void in itself, or is issued by a court or magistrate having no jurisdiction. An action for malicious prosecution, on the other hand, is a special action on the case, for the abuse of the process of law from malicious motives. It presupposes valid process, and case is given because trespass will not lie. It is given against tin- parly suing it out, because the hand which executes the process is justified by it, and it is not guilty of a trespass. There being no other remedy, this special ac- tion is provided. In the case before us, the propriety of this rule is made very manifest. The charge in the warrant is for a mere civil injury, of which a justice of the peace has no jurisdiction. It constitutes no crime. But every fact alleged in the Avarrant is fully proved. That did not justify Greenlee in taking it out ; because admitting the facts to be true, the magistrate could not take cognizance of the case, since it was not an indictable offense, nor a private wrong which he could redress. The prosecutor, magistrate, and sheriff were, therefore, all guilty of a trespass. But how can malicious prosecution lie? That can only be sustained where the party has been lawfully arrested, and where the prosecutor had no probable cause to believe the party guilty of the acts charged to him. Now, every fact charged here was proved. -If that does not constitute probable cause, nothing can. It is true, they do not constitute probable cause to think that Allen was guilty of a crime, but no crime is charged, and they do make probable cause to think that he did the acts charged, since it is in proof that he. in fact, did them. The judge confounded two distinct principles when, in order to maintain this suit for what appears to have been insulting and op- pressive conduct on the part of the defendant, he told the jury that there was no probable cause. There was full proof. Had the action been trespass, he would have been perfectly right in saying the evidence proved no justification. This action cannot be main- tained, and there must be a new trial. Reversed. For distinction between false imprisonment and malicious prosecution, see 19 Cyc. 321. For the remedy for false imprisonment, see 19 Cyc. 357. For the remedy for malicious prosecution, see 26 Cyc. 68. See "False Imprisonment." Century Dig. §§ 2, 81; Decennial and Am. Dig. Key No. Series §§ 3, 16; "Malicious Prosecution," Century Dig. §§ 23-55; Decen- nial and Am. Dig. Key No. Series |§ 17-24. Remedies — 30. 466 PERSONAL SECURITY, LIBERTY, ETC. [CJl. 5. BARFIBLD v. TURNER, 101 N. C. 357, 360, 8 S. E. 115. 1888. What the C07n.plaint Should Contain in Malicious Prosecution. [Action intended to be for Malicious Prosecution. There was a de- murrer ore tenus. Demurrer sustained, and judgment against the plaintiff, from which he appealed. Affirmed. Plaintiff alleged that the defendant procured his arrest and imprison- ment under process sued out by the defendant in a justice's court, whereby plaintiff suffered in mind, body, financial standing, and estate. What the complaint lacked is shown in the opinion, only so much of which as bears upon this defect is here inserted.] Merrimon, J. . . . The plaintiff does not allege that the process was void, or that it was groundless, or that it was issued without probable cause, or that it was prompted by malice, or that it was ended. The substance of these things he should have al- leged, if he intended to allege a cause of action for malicious pros- ecution, as it seems he intended to do. Judgment affirmed. 2 L. R. A. (N. S.) 927, and note (when an action is deemed termi- nated). The opinion in the principal case says, inferentially, that the complaint might have alleged that the process was void. Is that correct? See the preceding cases under this sub-section. See "Malicious Prosecu- tion," Century Dig. §§ 91-99; Decennial and Am. Dig. Key No. Series §§ 47-51. CRESCENT LIVE STOCK CO. v. BUTCHERS' UNION, 120 U. S. 141, 7 Sup. Ct. 472. Malicious Prosecution. Essential Points. Effect of a Judgment Re- versed on AppeaJ as Proialile Cause. Judgment of Committing Mag- istrate as Probable Cause. [Action in a state court for malicious prosecution, in which the Butchers' Union was plaintiff and Crescent Live Stock Co. was defend- ant. Appeal to the supreme court of the state from a judgment against the Crescent Live Stock Co. Judgment affirmed in that court, and the cause carried to the supreme court of the United States by writ of er- rer. Reversed. The defendant showed a decree of the circuit court of the United States granting and perpetuating an injunction, and insisted that it was conclusive proof of probable cause for the prosecution of the suit which Is claimed in this action to have been a malicious prosecution. The de- fendant requested the court to charge that the decree of the United States court was, per se, conclusive that probable cause existed for the prosecution of the suit in which the decree was rendered, even though such decree was subsequently reversed. This charge the judge refused to give. Only selected extracts from the opinion are here in- serted.] IMr. Justice Matthews. . The decree of the circuit court was relied upon in the state court as a complete defense to the action for malicious prosecution, on the ground that it was con- clusive proof of probable cause. The supreme court of Louisiana, a,fiirming the .iadgment of the inferior state court, denied to it, not only the effect claimed, but any effect whatever. It is conceded that, according to the law of Loui.siana, the action for a malicious Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 467 prosecution is founded on the same principles, and subject to the same defenses, as have been established by the common law pre- vailing in the other states. ... In the opinion in the present case, the supreme court of Louisiana say that to sustain the charge of malicious prosecution it is necessary to show " (1) that the suit had terminated unfavorably to the prosecutor; (2) that in bring- ing it the prosecutor had acted without probable cause ; (3) that he was actuated by legal malice, i. e., by improper or sinister motives. The above three elements must concur." And, when there is no dispute of fact, the question of probable cause is a question of law, for the determination of the court. Stewart v. Sonneborn, 98 U. S. 187, 194. Want of probable cause, and the existence of malice, either express or implied, must both concur to entitle the plaintiff in an action for a malicious prosecu- tion to recover. So that, if probable cause is shown, the defense is perfect, notwithstanding the defendant in instituting and carry- ing on the action may have been actuated solely by a motive and intent of malice. If he had probable cause to institute his action, the motives by which he was actuated, and the purposes he had in view, are not material. How much weight, as proof of probable cause, shall be attributed to the judgment of the court in the original action, when subse- quently reversed for error, may admit of some question. It does not appear to have been judicially determined in Louisiana. In the ease of Griffis v. Sellars, 4 Dev. & B. 177, Ruffin, C. J., said ' ' that probable cause is judicially ascertained by the verdict of the jury, and judgment of the court thereon, although upon an appeal a contrary verdict and judgment be given in a higher court. ' ' In Whitney v. Peckham, 15 Mass. 243, such a judgment was held to be conclusive in favor of the existence of probable cause. To the same effect is Herman v. Brookerhoff, 8 Watts, 240, in an opinion of Chief Justice G-ibson. The decision in the case of Whitney v. Peckham, ubi supra, however, was questioned by the supreme court of New York in the case of Burt v. Place, 4 Wend. 591, 598, where Marcy, J., delivering the opinion of the court, said that the Massa- chusetts decision rested entirely upon Reynolds v. Kennedy, ] Wils. 232, which had been qualified by the decision of Eyee, baron of the exchequer, in Sutton v. Johnstone, 1 Term R. 505, and by what was said by Lord Mansfield and Lord Loughborough in the same case, which came before them on a writ of error. 1 Term R. 512. The effect of these English authorities, as stated by Marcy, J., in Burt v. Place, ubi supra, is as follows: "That if it appears by the plaintiff's own declaration that the prosecution, which he charges to have been malicious, was before a tribunal having juris- diction, and was there decided in favor of the plaintiff in that court, nothing appearing to fix on him any unfair means in con- ducting the suit, the court will regard the judgment in favor of the prosecution satisfactory evidence of probable cause." In that case the judgment relied upon by the defendant was held not to be 468 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. conclusive. The reason is stated to be as follows: "Though the plaintiff admits in his declaration that the suits instituted before the magistrate by the defendant were decided against him, he suf- ficiently countervails the effect of that admission by alleging that the defendant, well knowing that he had no cause of action, and that the plaintiff had a full defense, prevented the plaintiff from procuring the necessary evidence to make out that defense by causing him to be detained a prisoner until the judgments were obtained, and by alleging that the imprisonment was for the very purpose of preventing a defense to the actions." Commenting on this case, the court of appeals of Kentucky in Spring V. Besore, 12 B. Mon. 551, 555, say: "The principle settled in the ease last cited we understand to be that such a judgment will not, in every possible state of case, be deemed to be conclusive of the question of probable cause ; but that, like judgments in other cases, its effect may be destroyed by showing that it was pro- cured by fraud or other undue means." That court proceeds to state the ru.le as follows: "The correct doctrine on the subject is, in our opinion, that the decree or judgment in favor of the plain- tiff, although it be afterwards reversed, is, in eases where the par- ties have appeared, and proof has been heard on both sides, eon- elusive evidence of probable cause, unless other matters be relied upon to impeach the judgment or decree, and show that it was ob- tained by fraud, and, in that case, it is indispensable that such matter should be alleged in the plaintiff's declaration, for unless it be done, as the other facts which have to be stated establish the existence of probable cause, the declaration is suicidal. The plain- tiff's declaration will itself always furnish evidence of probable cause when it states, as it must do, the proceedings that have taken place in the suit alleged to be malicious, and shows that a judg- ment or decree has been rendered against the plaintiff. To coun- teract the effect of the judgment or decree, and the legal deduction of probable cause, it is incumbent upon him to make it appear in his declaration that such judgment or decree was unfaii-ly ob- tained, and was the result of acts of malice, fraud, and oppression on the part of the defendant, designed and having the effect to de- prive him of the opportunity and necessary means to have defeated the suit, and obtained a judgment in his favor." The limitations upon the general principle declared in Burt v. Place, ubi supra, were followed by the supreme court of Maine in Witham v. Gowen, 14 Me. 362, and both decisions were referred to in the subsequent case of Payson v. Caswell, 22 Me. 212, 226, where the court said: "In these two cases we have instances of ex- ceptions to the general rule, indicative of the general nature of the characteristics which might be expected to attend them; but the rule itself remains unimpaired. If there be a conviction before a magistrate having jurisdiction of the subject-matter, not obtained by undue means, it will be conclusive evidence of probable cause." The propriety of this limitation of the rule seems to have been admitted by the supreme judicial court of Massachusetts in Bacon Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 461) V. Towne, 4 Cush. 217, 236, though in later eases it reiterated the broader rule, as originally stated in Whitney v. Peokham, ubi supra. Parker v. Huntington, 7 Gray, 36. This seems to reconcile the apparent contradiction in the au- thorities, and states the rule, which we think to be well grounded in reason, fair and just to both parties, and consistent with the principle on which the action for malicious prosecution Is founded. It is, perhaps, not material in this case to define the rule with precision, and to attempt to state with accuracy the precise effect to be given to a judgment or decree of the court as proof of prob- able cause under all circumstances, because in the present case the decree of the circuit court of the United States was adjudged to be entitled to no effect whatever as evidence in support of the defense of the plaintiff in error. . . . But the rule in question, which declares that the judgment or decree of a court having jurisdiction of the parties and of the subject-matter, in favor of the plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an appellate tribunal, was not established out of any special regard to the person of the party. As we have already seen, it will avail him as a complete defense in an action for a malicious prose- cution, although it may appear that he brought his suit mali- ciously, for the mere purpose of vexing, harassing, and injuring his adversary. The rule is founded on deeper grounds of public policy, in vindication of the dignity and authority of judicial tri- bunals constituted for the purpose of administering justice ac- cording to law, and in order that their judgments and decrees may be invested with that force and sanctity which shall be a shield and protection to all parties and persons in privity with them. The rule, therefore, has respect to the court and to its judgment, and not to the parties, and no misconduct or demerit on their part, except fraud in procuring the judgment itself, can be permitted to detract from its force. It is equally true and equally well settled in the foundations of the law that neither misconduct nor demerit can be imputed to the court itself. It is an invincible presumption of the law that the judicial tribunal, acting within its jurisdiction, has acted impartially and honestly. The record of its proceedings imports verity ; its judgments cannot be impugned except by direct process from superior authority. The integrity and value of the judicial system, as an institution for the administration of public and private justice, rests largely upon this wholesome principle. That principle has been disregarded in the present case by the su- preme court of Louisiana in failing to give due effect to the decree of the circuit court of the United States as sufficient evidence ~:i support of the defense of the plaintiff in error in this action, so far as it is an action for the recovery of damages for a malicious prosecution. The judgment of the supreme court of Louisiana on the bond it- self, for damages occasioned by its breach, against the principal and surety, is not attacked in this proceeding. It is so far affirmed. 470 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. But that part which constitutes a judgment against the Crescent City Live-stock Landing & Slaughterhouse Company solely, for damages for the malieioiis prosecution, is reversed, and the cause is remanded for further proceedings therein not inconsistent with this opinion ; and it is so ordered. That probable cause is a question o£ law for the court, see Plummer V. Glieen, 10 N. C. 66, Inserted ante in this sub-section, and the note to that case. Particular, as distinguished from general, malice must be shown. Particular malice is malice against a certain person. General malice is malice against mankind in general. Particular malice may be shown by threats and expressions of ill will; or it may be inferred from want of probable cause. Brooks v, Jones, 33 N. G. 260; see also Savage V. Davis, 131 N. C. 159, 42 S. E. 571, affirming this .and stating that par- ticular malice is not essential in libel, though it is in malicious prosecu- tion. If there be want of probable cause, etc., the advice of counsel is not an absolute defense, but it may be shown to rebut the presumption of malice.. Smith v. B. & L. Association, 116 N. C. 73, 75, 20 S. E. 963; Railroad v. Hardware Co., 143 N. C. 54, 58, 55 S. E. 422. In some states the advice of counsel makes out a case of probable cause, if the defend- ant shows that he acted in good faith. Black v, Buckingham, 174 Mass. 102, 54 N, E. 494; Pawlowski v. Jenks, 115 Mich, at p. 276, 73 N. W. 238. See also as to advice of counsel, 26 Cyc. 31; 19 Am. & Eng. Bnc. L. 685. See also, on the question of probable cause, 18 L., R. A. (N. S.) 49-74, and elaborate note (advice of counsel); 6 lb. 701, and note, 149 N. C. 100 (effect of reversal of conviction, on appeal); 6 L. R. A. (N. S.) 701, and note (effect of nol. pros.); 20 lb. 295, and note, 149 N. C. 100 (eflEect of plea of guilty); 15 L. R. A,. (N. S.) 1143, and note (conviction secured by fraud and perjury) ; 2 lb. 1100, and note (effect of want of jurisdic- tion of the court in which the prosecution was begun); 12 lb. 717, and note (effect of release after arrest, without further prosecution); 3 lb. 928, and note (effect of discharge by magistrate). See "Malicious Pros- ecution," Century Dig. § 58; Decennial and Am. Dig. Key No. Series § 25. WOOD V. GRAVES, 144 Mass. 365, 11 N. E. 567, 1887. Abuse of Legal Process. [Tort against Graves and others. Verdict against defendants, who al- leged exceptions. The complaint contained three counts: (1) For ma- licious prosecution; (2) For false ImprlsSonment; (3) For abuse of legal process. No facts are stated and none are necessary. Tho judgment be- low was reversed, but upon a point immaterial to the subject under consideration. After showing that the first two counts were not sus- tained by the proof, the opinion proceeds:] C. Allen, J. . . There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other pro- ceeding upon the process was justifiable and proper in its incep- tion. But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if, after an arrest upon civil or criminal process, the party arrested is subiected to unwar- rantable insult and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue Sec. 8 C.J PEESON.VL SECURITY, LIBERTY, ETC. 471 hardship, he has a remedy by au action against the officer, and against others who may unite with the officer in doing the wrong. It is sometimes said that the protection afforded by the process is lost, and that the officer becomes a trespasser ab initio. Esty v. Wilmot, 15 Gray, 168;-Ma]com v. Spoor, 12 Mete. 279. This rule, however, is somewhat technical, and is hardly applicable to others than the officer himself. But the principle is general, and is ap- plicable to all kinds of abuses outside of the proper service of law- ful process, whether civil or criminal, that for every such wrong there is a remedy, not only against the officer whose duty it is to protect the person under arrest, but also against all others who may unite with him in inflicting the injury. Perhaps the most frequent form of such abuse is by working upon the fears of the person un- der arrest, for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this sub.ject is Grainger V. Hill, 4 Bing. (N. G.) 212, where the owner of a ves- sel was arrested on civil process, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship's register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abus- ing it, to effect an object not within its proper scope. In Page v. Gushing, 38 Me. 523, the same doctrine was held applicable to the abuse of criminal process. Holley v. Mix, 3 Wend. 350, is to the same effect, and it was held thai an action for false imprisonment will lie against an officer and a complainant in a criminal prosecu- tion where they combine and extort money from a party accused by operating upon his fears, though the party was in the custody of the officer under a valid warrant, issued upon a charge of felony. The case of Baldwin v. Weed, 17 Wend. 224, was an action for false imprisonment. The plaintiff had been indicted in New York. He was arrested in Vermont, and caiTied to New York for trial. The defendant, Weed, procured the requisition, was present at the arrest, and caused the plaintiff to be put into irons, with the purpose to secure two small debts. The plaintiff executed to Weed a bond for the delivery of property much in excess of the debts. The action for malicious prosecution failed, but the court (Nelson, J.) declared that an action of trespass, assault, and false imprisonment should have been brought, and was the appropriate remedy for the excess of authority and abuse of the process, and intimated to the plaintiff to amend his pleadings accordingly. See, also, Carleton v. Taylor, 50 Vt. 220; Mayer v. Walter! 64 Pa. St. 283. On similar grounds, an officer becomes responsible in damages, for abuse of process, or as trespasser ab initio, by reason of such abuse, who omits to give an impounded beast reasonable food and water while under his care (Adams v. Adams, 13 Pick. 384) ; or who stays too long in a store where he has attached goods (Eowley 472 PEESONAL SECURITY, LIBERTY, ETC. [Ch. 5. V. Rice, 11 Mete. 337 ; Williams v. Powell, 101 Mass. 467 ; Davis v. Stone, 120 Mass. 228) ; or who keeps a keeper too long in posses- sion of attached property (Cutter v. Plowe, 122 Mass. 541) ; or who places in a dwelling house an unfit person as keeper, against the owner's remonstrance (Malcom v. Spoor, 12 Mete. 279). In various other cases, where it has been said that the only rem- edy was by an action for malicious prosecution, the whole griev- ance complained of consisted in the original institution of the process, and no abuse in the mere manner of serving it was al- leged. Such cases are Mullen v. Brown, 138 Mass. 114; Hamil- burgh V. Shepard, 119 Mass. 30 ; Coupal v. Ward, 106 Mass. 289 ; O'Brien v. Barry, Id. 300. The case of Hackett v. King, 6 Allen, 58, was trover for the conversion of property which the plaintiff conveyed to the defendant under alleged duress. In Taylor v. Jaques, 106 Mass. 291, the question arose in another form, the ac- tion being on a promissory note, in defense to which the defendant alleged that his signature was procured by duress. . . . See 12 L. R. A. (N. S.) 1019, and note (insult, etc., after arrest). See "Malicious Prosecution," Century Dig. § 7; Decennial and Am. Dig. Key No. Series § 7. ADAMS V. LISHER, 3 Blackford, 241, 244. 1833. Malice and Probaile Cause. Prosecutions for Wrongs Affecting the Public Distinguished from Those for Private Benefit. Effect of Ac- quittal on the Question of Probable Cause. [Lisher sued Adams for Malicious Prosecution. Verdict and judg- ment against Adams, who carried the case to the supreme court by writ of error. Reversed. Adams had "prosecuted Lisher in an action of trespass for cutting timher on the land of the United States," and caused him to be imprisoned by the United States marshal. Lisher was acquitted of this charge, and then brought this action against Adams. The judge charged that although Lisher was guilty of cutting certain poplar trees on the land of the United States, yet, if that fact was un- Jcnown to Adams at the time he caused the action to be commenced against Lisher, the prosecution was malicious and Lisher could recover.] Stevens, J. . . . The last error complained of is the in- struction of the court to the jury, that although the plaintiff was guilty of cutting some of the poplar trees on the land in question, as charged in the declaration, yet, if that fact was unknown to the defendant at the time he caused the action of trespass to be com- menced, the prosecution was malicious, and the defendant was liable to the plaintiff for a malicious prosecution. The grounds of this action are malice, either express or implied, and the want of probable cause; both must exist, or the action cannot be main- tained. From the want of probable cause, malice may be implied; Out the want of probable cause can never be implied from the proof of malice. The direct proof of the most intense malice is not sufficient; there must be proof also of the want of probable cause, or the suit must fail. The want of probable cause is never Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 473 implied. There is a distinction between malicious arrests in civil suits between individuals prosecuted for the private benefit of the plaintiff and a malicious prosecution of an offense, misdemeanor or wrong, which affects the public. In the latter case, the prosecutor is much more favored than in the other. It is a rule of law which seems to be founded on principles of policy, convenience, justice, and necessity, that the prosecutor of a wrong that affects the pub- lic shall be protected, provided he has probable cause, however malicious his private motives may have been ; for although he may have intended ill, still good may arise to the public. 1 T. R. 493 ; "White v. Dingley, 4 Mass. 433 ; Linds&y v. Larned, 17 Mass. 190 ; Vanduzor v. Linderman, 10 Johns. 106; 2 Stark. Ev. 911 ; 2 Wils. 302 ; 2 Saund. PL & Ev. 195 ; 1 Sw. Dig. 491 . This suit is founded on a prosecution set on foot by the defend- ant against the plaintiff', for a wrong that affects the public, and, therefore, the defendant stands on the footing of the most favored class of prosecutors. It was an action of trespass for cutting and carrying away from lands belonging to the public, timber, that is to say, two poplar trees, and one hickory tree, etc. The gist of that action was the trespass, and proof of cutting and carrying away any one of those trees, would be sufficient to sustain the action ; and if he w'ere guilty of the trespass, he cannot maintain this ac- tion, although he may have been acquitted in the district court, where he was prosecuted ; and it is immaterial whether the defend- ant knew him guilty or not, if he can now prove the fact that he was guilty, or if he can even prove that there was probable cause to suspect him of being guilty, it is sufficient for him. Judgment reversed. See "Malicious Prosecution," Century Dig. §§ 49-55; Decennial and Am. Dig. Key No. Series § 24. RAILROAD V. HARDWARE CO., 143 N. C. 54, 57-59, 55 S. E. 422. 1906. Abuse of Legal Process and Malicious Prosecution Distinguished,. Ad- vice of Counsel. [Action for abuse of legal process in attaching plaintiff's cars and keeping them tied up for two years. What judgment was rendered, is not disclosed in the reported case, but both parties appealed. Affirmed.] Claek, C. J. . . The court below erred in instructing the jury that "if they believed the evidence to answer the first issue 'Yes. ' That issue was, 'did the defendant wrongfully, and without probable cause, cause to be issued and levied a warrant of attach- ment upon the property of the plaintiff?' There was ample evi- dence to submit to the jury upon the question of probable cause. There was the testimony of the general manager of the defendant that the party who bought the goods told him they were for the use of, and bought for the account of, the plaintiff; that he had no reason whatsoever to disbelieve this statement ; that the action was 474 PERSONAL SECURITY, LIBERTY, ETC. [CIl. 5. instituted by the defendant in the utmost good faith, "believing that the plaintiff verily owed the debt for which the property was at- tached; that, notwithstanding this belief, out of the abundance of caution, he submitted honestly all the facts to his counsel, who ad- vised him that he had a cause of action against the plaintiff ; that no steps were taken except such as were advised by his attorney; that, as for attaching more property than the amount of his claim would warrant, he had no idea what property the sheriff had at- tached under, and by virtue of, the vvrit, and that his only cause for taking a nonsuit at the time of the trial of the action was his inability to secure the attendance, as a witness, of the party who bought the goods." The defendant had laid all the facts before counsel of high standing in the profession, and had sued out the attachment under his advice. This is evidence to rebut the allega- tion of malice. Smith v. B. & L. Asso., 116 N. C. 73, 20 S, E. 963, and there are many authorities holding that it is evidence, also, of probable cause. See cases collected in note 93 Am. St. Rep. 461. This action furthermore cannot be maintained for malicious prose- cution, if as the jury have found, there was no malice. Railroad v. Hardware Co., 138 N. C. 174, 50 S. E. 571. The only ground for an action for abuse of process is the levy on an excessive number of cars for the alleged purpose of forcing payment of an alleged debt, preferably to submitting to loss and inconvenience by the attachment. There was certainly evidence, above set out, in denial of this, and it was error in any aspect of the ease to instruct the jury to answer the first issue "Yes." If the officer levied, as it seems that he did, on an excessive quantity of property, the plaintiff in the attachment was not liable for the abuse unless it had in some way directed, advised or encouraged such act. 19 Am. & Eng. Enc. (2d ed.) 630. This being denied, raised an issue for the jury. It may be as well to note here the distinction between an action for malicious prosecution and an action for abuse of process. In an action for malicious prosecution there must be shown (1) mal- ice, and (2) want of probable cause, and (3) that the former pro- ceeding has terminated. Railroad v. Hardware Co., 138 N. C. 174, 50 S. E. 571. In an action for abuse of process it is not nec- essary to show either of these three things. By an inadvertence it was said in the case last cited that want of probable cause must be shown. "If process either civil or criminal is wilfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie." 1 Cooley, Torts (3d ed.), 354. "Two elements are necessary : First, an ulterior purpose ; second, an act in the use of the process not proper in the regular prosecution of the proceeding." Id. 355 ; 1 Jaggard, Torts, § 203 ; Hale on Torts. § 185. "An abuse of legal process is where it is employed for some unlawful object not the purpose intended by law. It is not necessary to show either malice or want of probable cause, nor that the proceeding had terminated, and it is immaterial whether such proceeding was baseless or not." Mayer v. "Walter, 64 Pa. Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 475 283. The distinction has been clearly stated. Jackson v. Tel. Co., 139 N. C. 356, 51 S. E. 1015, 70 L. R. A. 738. Error. An action lies for the malicious abuse o£ lawful process — whether civil or criminal — Issued for a just cause, valid In form, and proceeded on in a manner justified and proper in its inception, but subsequently abused. Jackson v. Telegraph Co., 139 N. C. 347, headnote 9, 51 S. E. 1015, inserted post, in this section. See "Process," Century Dig. § 257; Decennial and Am. Dig. Key No. Series § 168. DOCTOR et al. v. RIEDEL et al., 96 Wis. 158, 71 N. W. 119. 1897. Lawful Exercise of Legal Process with a Malicious Motive and Ulterior Vindictive Object. Executing Lawful Process in an Offensive Manner. [Action for abuse of legal process. General demurrer. Demurrer overruled. Judgment against defendants, and they appealed. Reversed. The facts appear in the beginning of the opinion.] "WiNSLOW, J. The complaint charges, in brief, that the defend- ants, without previous demand, entered judgment upon a judg- ment note at 10 o'clock at night, and immediately issued execu- tion thereon, and broke into the plaintiffs' store, and levied upon their stock of goods, with the malicious intent thereby to injure and destroy the plaintiffs' business credit and reputation, and that the plaintiffs, on being informed of the seizure, immediately paid the judgment and procured release of the levy. Plainly, the complaint does not state a case of malicious prosecution of a civil action, because the action ended favorably to the present defend- ants; thus demonstrating that there was not only probable, but perfect, cause for bringing it. O'Brien v. Barry, 106 Mass. 300. It is claimed, however, that a cause of action is stated for abuse of process. The authorities upon the question of what will consti- tute a cause of action for abuse of process are certainly in a state of some confusion, and frequently this action seems to have been confounded with actions for malicious prosecution, although they are essentially different actions. The leading case on the subject. perhaps, is the case of Grainger v. Hill. 4 Bing. N. C. 212. Here the plaintiff was arrested at a time when he could not procure bail, and kept under arrest until he surrendered a ship 's register. The capias was a valid writ, regularly issued upon a good cause of action, but it was used to effect an ulterior and illegitimate pur- pose; and for that use there was held to be a remedy in tort, re- gardless of the question whether the original action was deter- mined, or whether it was founded on probable cause. So, where an execution is issued upon a judgment already paid, or for an excessive amount, and goods are levied upon, a remedy is given. In these and similar cases, as said by an eminent text writer, ' ' it is enough that the process was wilfully abused to accomplish some unlawful purpose." Cooley, Torts (2d ed.) , pp. 220, 221. This is probably the test, namely, whether the process has been used to ac- complish some unlawful end, or to compel the defendant to do 476 PERSONAL SECURITY, LIBERTY, ETC. [Ck. 5. some collateral thing which he could not legally be compelled to do. Johnson v. Reed, 136 Mass. 421. Applying this test to the case before us, we do not discover any cause of action stated. The process of the court has been used to collect a valid debt, and in precisely the manner that the plaintiffs here consented to its use by the judgment note. By this instrument the plaintiffs author- ized its holder to enter judgment and issue execution at any time, and this is all that has been done. The defendants seem to have acted strictly within their right. The general rule is that, where one exercises a legal right, his undisclosed motives are immaterial. Phelps V. Nowlen, 72 N. Y. 39 ; Raycrof t v. Tayntor, 68 Vt. 219, 35 Atl. 53. We see no reason why the rule should not apply here. The defendants having collected their debt in a way which they were authorized to use, we cannot punish them for their secret motives. The plaintiffs had an open account at the bank, upon which there stood $850 to their credit, and they claim that this should have been applied upon the note. Whether the bank had a right to make such an application without consent may be doubt- ful, but, whether it could do so or not, we see no reason for hold- ing that it was obliged to do so. Order reversed and action re- manded, with directions to sustain the demurrer. Marshall, J. (dissenting). I understand the decision of the court to be to the effect that if a person is in the mercantile busi- ness and unquestionably solvent, to the knowledge of another to whom he is indebted on a judgment note, the circumstances being that such other knows he can obtain payment of such note on de- mand, he may, notwithstanding, with the malicious purpose to destroy the credit of his debtor and break up his business, enter judgment on .such note at 10 o'clock at night, immediately issue an execution thereon, and, in the absence of such debtor (his place of business being closed for the night), cause an officer to break into such place and take possession of such debtor's stock in trade, without having made any demand for payment of the debt, or demanding entrance to the store, or giving the debtor any no- tice whatever that immediate payment of the debt is required, thereby maliciously causing unnecessary and serious pecuniary injury to such debtor, and that such conduct constitutes no wrong, or, if it does, it is without legal redress. If there is no remedy for such an official outrage, it must stand as a striking ex- ample of the insufficiency of our system of jurisprudence to deal with a class of .serious malicious injuries that may break down a prosperous business, involve its owner in utter ruin, turn his con- dition of solvency to one of insolvency, and make him a beggar in a day. I must respectfully dissent from that doctrine, and pro- test that no such imperfection exists in the remedies afforded by our laws. That the reasoning upon which the decision of my "brethren rests leaves such a wrong without a remedy is of itself an infallible test of its fallacy. Actionable injuries, growing out of what is commonly called "abuse of process," consists of two Sec. 8 C] PERSONAL SECURITY, LIBERTY, ETC. 477 classes: One where the process of the court is not used for its legitimate purpose, but to accomplish by coercion some outside ob- ject not within the proper use of the process, a.s in Grainger v. Hill, 4 Bing. N. C. 212, cited in the opinion of the court, where the injured party was arrested on a valid writ in order to coerce him into delivering a ship's register, which was entirely outside of the legitimate purposes of the writ. My brethren test the com- plaint here solely by Grainger v. Hill and similar cases, and the elementary principle that abuse of process, strictly so called, is the use of process regularly issued, to accomplish an unlawful end, or to compel the defendant to do some collateral thing. Thereby the conclusion is easily reached that the complaint does not state a cause of action. But there is another class of mali- cious injuries growing out of abuse of process, sometimes desig- nated as "malicious misuse of process," that has been, to my mind, entirely overlooked, to which class the ease made by the complaint belongs, and Avithin the rules of which a good cause of action is clearly stated. Such class includes the use of process to accomplish its legitimate object, but in a reckless, unnecessarily oppressive way, with wrong intent to injure the person against whom the process runs. Such misuse is actionable, because of the unnecessary injurj^ inflicted, and the motive of it. The two classes of injuries referred to are recognized in IMayer v. Walter, 64 Pa. St. 283, which is a very instructive case on the subject. The court there held, in effect, that malicious abuse of process is where it is used for some unlawful object not within its scope, but that malicious misuse of process may take place where no object but its proper and legitimate execution is contemplated. Here the object intended was the execution of the judgment. Defend- ant had a legal right to collect it, but the proceedings to that end were unnecessarily harsh and oppressive, and with bad intent; hence the actionable injury. Rogers v. Brewster, 5 Johns. 125. which will be found cited by all standard text writers, touches this case at every essential point. The officer had ample opportu- nity to execute his writ by taking property that would not inter- fere seriously with the debtor's business. Instead of doing so, he took a horse from the team with which such debtor was at work, with intent to embarrass and injure him. In deciding the case the court said: "The constable appears to have executed the war- rant in an unreasonable and oppressive manner, and with the avowed and malicious design to harass and oppress the plaintiff. The oppression of an officer in the execution of process is indict- able, and a great abuse of the powers of a sheriff on execution has been held sufficient to make him a trespasser. If he be charged with a malicious and oppressive proceeding, a proper remedy for this abuse of power is a special action on the case, in which the malice and oppression must be made manifest. The seizing and selling of the horse in the case before us was without any just cause, so long as other property was shown which would have raised the money with equal facility. It was therefore a cause- 478 PERSONAL SECURITY, LIBERTY, ETC. [Cll. 5. less and malicious proceeding. "Where a ministerial officer does anything against the duty of his office, and damage thereby ac- crues to the partJ^ an action lies." To the same effect are Juch- ter V. Boehm, 67 Ga. 534; Snydaeker v. Brosse, 51 111. 357. In Bilger v. Buchajian (Tex. Sup.), 6 S. W. 408, the officer and the execution plaintiff, who ratified the officer '^ct, were held liable for the malicious conduct of the latter in executing the writ in a hastj^ and oppressive manner at a time when it subjected defend- ant and his family to unnecessary hardship. Many cases of the same kind exist in the books, but time will not permit calling at- tention to them further than is necessary to show clearly my rea- sons for holding that the complaint in the instant case states a cause of action. The whole subject might well rest on Smith v. Weeks, 60 Wis. 94, 18 N. W. 778. There the officer had a warrant to arrest Weeks in contempt proceedings. The latter was a loco- motive engineer. He was at home all day, to the knowledge of the officer, and might have been arrested, and the object of the writ satisfied, without seriously embarrassing him. It was his duty to go out with his engine at night, which the officer knew, yet, for the purpose of embarrassing and unnecessarily oppressing Weeks, the officer waited till he Avas about to go out on his night run, and then arrested him. The court held that such conduct constituted an official outrage, and a clear abuse of process. There were many aggravating circumstances which occurred after the arrest, but the court held clearly that the arrest itself, under the circum- stances, and the motive of it, constituted abuse of process. From the foregoing, the principle governing this subject may be stated thus : If process to collect a judgment be executed in an unneces- sarily harsh and oppressive manner, with a malicious purpose to injure the judgment debtor, such conduct constitutes an action- able wrong. In executing such a process the officer must not be guilty of oppression, or make use of greater force or violence than the thing requires. If he does, he is guilty of an abuse of process and liable for damages. Alder. Jud. Writs, 514, § 179. Applying the above-stated principle to the complaint before us, the order overruling the demurrer to the complaint was obviously right, and should be sastained. See "Process," Century Dig. § 257; Decennial and Am. Dig. Key No. Series § 168. .TACKSON V. TELEGRAPH CO., 139 N. C. 347, 355, 51 S. E. 1015. 1905. False Imprisonment, etc. Measure of Dam,ages. TAction tor False Imprisonment. Judgment against defendant. De- fendant appealed. AflRrmed. Only that portion of the opinion which de- cides upon the measure of damages, is here inserted.] W.VLKER. J. . , The court charged correctly when it per- mitted the jury to award punitive damages. If McManus, as the jury found, arrested the plaintiff, not because the latter had as- Sec. 8 d.] PERSONAL SECUEITY, LIBERTY, ETC. 479 saulted him, but to put him out of the way and thereby prevent his resistance to an entry upon the land, it was a case where vin- dictive damages might well be allowed by the jury in addition to compensation for the wrong. The court in its charge made the question of probable cause turn upon whether the plaintiff had or had not assaulted McManus, and, they having decided that there was no probable cause, it follows that they found there was no assault, and that the arrest was wholly unjustifiable, and a wan- ton, highhanded, and oppressive act, for which punitive damages may be allowed. Remington v. Kirby, 120 N. C. 320, 26 S. E. 917. The verdict was moderate in view of the circumstances, and the jury do not seem to have allowed much, if anything, in the way of exemplarv' damages. "The doctrine is well settled that the jury, in addition to compensatory damages, may. award ex- emplary, punitive, or vindictive damages, sometimes called 'smart money, ' if the defendant has acted wantonly or with criminal in- difference to civil obligations" (Railroad v. Prentice. 147 U. S. 106, 13 Sup. Ct. 261, 37 L. Ed. 97), or the defendant has been guilty of an intentional and wilful violation of the plaintiff's rights (Railroad v. Arms, 91 U. S. 489, 23 L. Ed. 374; Ilansley v. Railroad, 117 N. C. 565, 23 S. E. 443, 32 L. R. A. 543, 53 Am. St. Rep. 600). ... No error. See "False Imprisonment," Century Dig. §§ 109-115; Decennial and Am, Dig. Key No. Series §§ 32-36. (d) Liability of Officers in Actions for False Imprisomnent . Ma- licious Prosecution, and Ahii,se of Legal Process. STEWART V. COOLBY, 23 Minn. 347, 23 Am. Rep. 690. 1877. Liability of Judicial Officers. [Action for Conspiracy to institute a Malicious Prosecution against the plaintiff. The acts of Cooley which are made the subject of this action, were done in his capacity as judge of the municipal court of Minneapolis. Demurrer. Demurrer sustained. Judgment against plain- tiff, and he appealed. Reversed. The facts appear in the beginning of the opinion.] Cornell, J. Eliminating from the complaint the averments "that defendants, on etc., at, etc., wilfully and maliciously eon- spired together to cause said plaintiff to be charged with, com- plained of, and arrested and imprisoned for the crime of perjury, as hereinafter set forth, and that, in pursuance of the said con- spiracy," the thereinafter recited acts were done, we find no dif- ficulty whatever in agreeing with the court below that no cause of action is stated against the defendant Cooley. The reception of the complaint, the issue of a warrant thereon, the decision upon its sufficiency, and refusal to discharge the pris- oner from arrest, his subsequent omission to take any steps to pro- iSO PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. cure the attendance of the prosecuting witness, and dismissal of the action for want of prosecution, were all acts and omissions done and admitted in his capacity of judge, in the performance and discharge of his judicial duties, in a matter and proceeding clearly within the criminal jurisdiction of the municipal court, of which he was judge. No private action could be maintained upon any of these acts, decisions, or omissions, however erroneous they may have been, or by whatever motives prompted. An inde- pendent judiciary is justly regarded as essential to the public welfare and the best interests of society. Hence, the doctrine has become settled that, for acts done in the exercise of judicial au- thority, clearly conferred, an officer or judge shall not be held liable to any one in a civil action, so that he may feel free to act upon his oAvn convictions, uninfluenced by any fear or apprehen- sion of consequences personal to himself. Yates v. Lansing, 5 Johns. 282; S. C, 9 Johns. 394; Rochester "White Lead Co. v. City of Rochester, 3 N. Y. 463; Stewart v. Hawley, 21 Wend. 552; Weaver v. Devendorf , 3 Denio, 117 ; Harman v. Brotherson, 1 Denio. 537; Wilson v. Mayor of New York, 1 Denio, 595; Randall V. Brigham, 7 Wall. 523 ; Bradley v. Fisher, 13 Wall. 335. While we are thiis clear that none of the specific acts charged in the complaint, taken singly or together, furnished any ground for a civil action, or even any evidence sufBcient to support the allegations of conspiracy in the complaint, we cannot concur with the court below in holding the conspiracy averments hereinbefore quoted as merely formal and immaterial allegations. - Under them it would have been competent, on the trial, to prove that, prior to the institution of the criminal proceedings, the defendant Cooley and the other defendants met together, and maliciously and without probable cause actually entered into an agreement and conspiracy with each other to pi-osecute plaintiff for perjury, for the sole purpose of bringing him into disgrace, and subject- ing him to arrest and imprisonment ; and that each and all the acts charged to have been done by the defendants, respectively, were done solely in pursuance of this agreement, and to carry out this common purpose, and not otherwise. It cannot be doubted that such a conspiracy, previously formed, and carried out by such a gross perversion and abuse of legal process and proceedings, would subject all the parties engaged in it to liability to the party injured and aggrieved. The act of entering into such an agree- ment was not done in the course of any judicial proceeding, or in the discharge of any judicial function or duty. . Re- versed. See the valuable note to the principal case in 23 Am. Rep. at pp. 692- C94. Judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and alleged to have been done mali- ciously or corruptly. Judges of inferior and limited jurisdiction are protected only when the act Is within their jurisdiction. If judges of superior and general jurisdiction act corruptly or maliciously In mat- ters over which there is a clear absence of all jurisdiction, as distin- Sec. 8 d.] PERSONAL SECURITY, LIBERTY, ETC. 481 guished from a mere exceeding of their jurisdiction, they may be liable. Bradley v. Fisher, 13 "Wall, at pp. 351-354. See "Judges," Century Dig. § 165; Decennial and Am. Dig. Key No. Series § 36. WALL V. TRUMBULL, 16 Mich. 228, 234-236. 1867. Judicial and Ministerial Officers and Duties Distinguished. Respective Liabilities of Such Officers. Superior and Inferior Courts. Juris- diction. [Action of Trespass for issuing a warrant, as supervisor, to collect an alleged illegal tax, under which warrant Wall's property was sold. De- fendant pleaded that what he did was done in his official capacity as supervisor. Judgment against Wall, who carried the case to the su- preme court by writ of error. Affirmed. Only part of the opinion is inserted here.] CooLEY^, J. . . It will now become necessary to consider whether the supervisor can he held liable as a member of the town- ship board which allowed the claims. It is objected on his behalf that it does not appear that he voted in favor of their allowance, and it is urged that, for aught that appears, he may have opposed them. But I am of opinion that this objection is not well taken. The supervisor's presence was necessary to a quorum when they were allowed, and nothing appears from ^^•hich his dissent can be inferred. He signed the record of the allowance, embodying therein ^n order to himself, as supervisor, to levy the amount by taxation — an order without any purpose, so far as I can perceive, except to formally connect the persons signing it with the allow- ance of the claims, and the levy of the taxes to meet them. In determining whether the members of the township board voting for the allowance are liable, the first question which arises is, whether the nature of their duties is judicial, or ministerial only; for the rule of liability is altogether different in the two Cases. A ministerial officer has a line of conduct marked out for him, and has nothing to do but to follow it; and he must be held liable for any failure to do so which results in the injury of an- other. A judicial officer, on the other hand, has certain powers confided to him to be exercised according to his judgment or discre- tion; and the law would be oppressive which should compel him in every ease to decide correctly at his peril. It is accordingly a rule of very great antiquity that no action will lie against a ju- dicial officer for any act done by him in the exercise of his judicial functions, provided the act, though done mistakenly, were within the scope of his jurisdiction. Broom's Max. 82; Smith v. Boucher, Gas. Temp. Hardw. 69 ; Mostyn v. Pabrigas, Cowp. 161 ; Mills V. CoUett, 6 Bing. 85; Garnett v. Farrand. 6 B. & C. 625; Houlden v. Smith, 14 Q. B. 841 ; Yates v. Lansing, 5 Johns. 291 ; 9 Ibid. 396; Dicas v. Lord Brougham, 6 C. & P. 249; Holroyd v. Beare, 2 B. & Aid. 473; Pike v. Carter. 3 Bing. 78; Lowther v. Earl of Radnor, 8 Bast, 113; Basten v. Carew, 3 B. & C. 652; Remedies — 31. 482 PERSONAL SECURITY, LIBEBTY, ETC. [Ch. 5. Stewart t. Hawley, 21 Wend. 552 ; Weaver v. Devendorf , .3 Denio, 117 ; Vail V. Owen, 19 Barb. 22 ; Hill v. Selliek, 21 Barb. 207 ; Gor- don V. Farrar, 2 Doug. (Mich.) 411; Wilkes v. Dinsman, 7 How. 89. This principle of protection is not confined to courts of rec- ord, but it applies as well to inferior jurisdictions; the only dif- ference being that authority in a court of general jurisdiction is to be presumed, while the jurisdiction of inferior tribunals must affirmatively appear on the face of their proceedings. Wight v. Warner, 1 Doug. (Mich.) 384; Clark v. Holmes, Ibid. 390; Chandler v. Nash, 5 Mich. 409. Nor does the rule depend upon whether the tribunal is a court or not; it is the nature of the du- ties to be performed that determines its application. Thus, in Harrington v. Commissioners, etc., 2 McCord, 400, a decision by road commissioners that one was not exempt from a road assess- ment was held a protection notwithstanding the party was ex- empt in fact. In Freeman v. Cornwall, 10 Johns. 470, an over- seer of highways who had adjudged one in default for not work- ing, and obtained a warrant of distress from a magistrate, was held not liable, although in fact there was no default. In Bastou v. Calendar, 11 Wend. 90, the trustees of a school district in- cluded in their apportionment of taxes the collector's percentage, though otherwise directed by statute, but were held not liable. In Weaver v. Devendorf, 3 Denio, 117, it was held that the duty of assessors in determining the value of taxable property was in its nature judicial, and that, however erroneous their decision, they were not liable to a suit on behalf of the party aggrieved. The court say the act "is emphatically a judicial act," and "the principle of irresponsibility, so far as respects a civil remedy, is £is old as the common -law itself." The same rule was applied to assessors in Dillingham v. Snow, 5 Mass. 547. In Brown v. Smith, 24 Barb. 419, it was held that assessors act judicially in determin- ing upon the residence of a person owning real estate subject to taxation, and that they were not liable to an action for an erro- neous decision. And on the same ground they were held not liable in Vail v. Owen, 19 Barb. 22, for assessing property which by law was exempt from taxation. See the same principle ap- plied in a tax case, in Hill v. Selliek, 21 Barb. 207. The rule was applied in Van Steenbergh v. Bigelow, 3 Wend. 42, to appraisers appointed to assess damages under a turnpike act, and in Gordon V. Farrar, 2 Doug. (Mich.) 511, to inspectors of election in passing upon the qualification of voters. See also Stewart v. Hawley, 21 Wend. 552 ; Macon v. Cook, 2 Nott & McCord, 379 ; IMoor v. Ames, 3 Caines, 170. There can be no question, I think, in the light of these decisions, that the duties performed by this board are within the principle of protection which they affirm. None of these cases conflict with those where officers, judicial as well as ministerial, have been held liable when acting without jurisdiction. Assessors have frequently been held liable for levy- ing a personal tax upon a person not resident within their town- ship, because their jurisdiction over personal assessments Avas Sec. 8 dr.] PERSONAL SECURITY, LIBERTY, ETC. 483 confined to residents (Freeman v. Kenney, 15 Pick. 44; Gage v. Currier, 4 Id. 399; Suydam v. Keys, 13 Johns. 444; Mygatt v. Washburn, 15 N. Y. 316) ; and all classes of officers have been subjected to similar responsibility. The rule of official exemp- tion depends in these cases upon jurisdiction; but wherever that appears and is not exceeded, the protection is complete. Judgment affirmed. No action will lie against a justice of the peace for his judicial acts as distinguished from his ministerial acts, provided he act within his jurisdiction. It is not always easy, however, to distinguish between ju- dicial and ministerial acts. See Purr v. Moss, 52 N. C. 525. If the act be judicial — as a commitment for a contempt committed in the pres- ence of the court — no action will lie even against the mayor of a town who acted both maliciously and erroneously. Scott v. Flshblate, 117 N. C. 265, 23 S. E. 436, 30 L. R. A. 696. For further discussion of this matter, see 80 N. W. 248, 46 L. R. A. 215, and note. See "Taxation," Cen- tury Dig. § 508; Decennial and Am. Dig. Key No. Series § 301. TAYLOR V. ALEXANDER et al., 6 Ohio, 144. 1833. Acting Uncier Void and Voidable Process. [Action of Trespass for assault and battery, and for false imprison- ment of plaintiff and his wife. Verdict and judgment against plaintiff. Plaintiff moved for a new trial, and upon this motion the opinion is written. Motion refused, and judgment against the plaintiff. The acts complained of were done in the execution of a warrant is- sued by a justice of the peace. The judge charged that the warrant, though irregular, was not void, and afforded a justification to the de- fendant provided he acted in a reasonable manner and without excessive violence, etc.; and that if the process was legal, the motive which actu- ated the party who procured it was immaterial in this form of action, i. e. Trespass vi et armis.] Wright, J. The first question to be decided is, whether it is competent for the plaintiff in trespass to prove, in order to en- hance the damages, that a legal prosecution was commenced with a malicious motive? If the prosecution complained of be mali- cious, and the forms of law have been used for malignant pur- poses, the party injured has his remedy by an action on the case for a malicious prosecution, in which the concurrence of a mali' cious motive with the want of probable cause will subject the aggressor to damages commensurate with the injury sustained and oftentimes to those exemplary or vindictive. In trespass, the rule is different. If the defendant in that action has acted under valid legal proceedings, they will justify him, and protect those acting luider him. The true question in such case is, were the acts complained of legal? If they were, they are none the less so, because the party instituting the legal proceedings was actuated by motives of revenge or malignity. The evidence offered by the plaintiff, and ruled out at the trial of the case, was offered upon the avowed ground that proceedings had been commenced under the criminal laws. The proceedings themselves bad not been 484 PEESONAL SECURITY, LIBERTY, ETC. [Cll. 5. shown, and could not be considered by the court either as legal, or as illegal and Yoid; and it was therefore properly rejected. It is no answer to this to say, that subsequently these proceedings were given in evidence, because after so given in evidence the proof was not offered. 2. Were the warrants of the justice of the peace a justification to the officer and his posse ? The principle is well established that executive officers, being obliged to execute process, are protected in the rightful discharge of their duty, provided the process is- sued from a court or magistrate having jurisdiction of the subject matter. And if the magistrate proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury. 13 Mass. 286, 272; 14 Mass. 459. The executive officer is justified, even when the process under which he acts is void- able for irregularity or mistake in issuing it. 4 Mass. 232; 2 Stark. Ev. 818; 3 Stark. Ev. 1448, n. (e). The cases relied upon by the plaintiff's counsel are those of attempted justification where there appears an excess of jurisdiction. In such cases, the process being void, it, of course, could afford no protection. As if a justice of the peace were to issue a writ in slander, that process would not protect the officer, because the justice has no jurisdiction of the subject. It does not comport with law or cor- rect policy to permit an executive officer, or those he commands as his posse, to examine into the regularity of the proceedings of the court whose process they execute, or to confer upon them author- ity to proceed or to forbear, as they may judge best. The rule that holds them to Icnow the extent of the jurisdiction requires for its justification some legal subtlety, but rests on far different ground from that urged by the plaintiff. The papers in this case are irregular, but do they not show a proceeding under the laws of the state? We think they do. The affidavit might not stand a critical examination. The magistrate in drawing it has endeav- ored to pursue the statute form, and has omitted a sentence. If tlie affidavit was the authority under which Peterson and Boland justified, we should doubt ; and we might also doubt, if the justice sought under that to protect himself. But it must be remembered that the justice was acquitted before this evidence was introduced. We think the other defendants need not look back of the warrants for their justification. The larceny is bunglingly enough charged in the warrant, yet it shows that there was a complaint under the laws for the punishment of crimes, for taking the property of an- other, and commanded the arrest, and the officer was legally bound to execute it. The search warrant describes the offense suf- ficiently clear. The objection that it sets forth the belief that the offense had been committed by Taylor or his wife, while it com- mands the search of the house of Taylor, the husband, and if the goods were found, to bring forth only his body, does not seem to us of much weight. The goods were found in his possession ; his arrest is complained of; and, in our opinion, the law does not in- voke the aid of courts to piuiish the officers of justice for trifling Sec. 9.] PERSONAL SECURITY, LIBERTY, ETC. 485 errors in drawing up legal process. If they are substantially good they are sufficient. We do not inquire what right these par- ties have in any other form of action, and only decide that, in this case, the error of the court is not apparent ; certainly not such as to require us to grant a new trial. Judgment for defendant. See "False Imprisonment," Century Dig. § 16; Decennial and Am. Dig. Key No. Series § 4; "Justices of the Peace," Century Dig. § 46; Decennial and Am. Dig. Key No. Series, § 27; "Sheriffs and Constables," Century Dig. §§ 143-157; Decennial and Am. Dig. Key No. Series § 98. Sec. 9. Deprivation of Privileges. ASHBY V. WHITE et al., 2 Lord Raymond, 938, 941, 958. 1704. Unlawful Interference with the Right to Vote. [Action on the Case for damages for refusing to allow the plaintiff to vote. Verdict against the defendants, who moved in arrest of judgment on the ground that the action could not be maintained. The motion was sustained and judgment entered against the plaintiff. Holt, C. J., dis- sented. The plaintiff finally prevailed, as appears from the statement at the end of the opinion.] GooLD, J. I am of opinion that judgment ought to be given in this ease for the defendants, and I cannot by any means be recon- ciled to give my judgment for the plaintiff, for there are no foot- steps to warrant such an opinion, but only a single case. I am of opinion that this action is not maintainable for these four reasons : First, because the defendants are judges of the thing, and act herein as judges; Secondly, because it is a parliamentary matter, with which we have nothing to do; Thirdly, the plaintiff's privi- lege of voting is not a matter of property or profit, so that the hindrance of it is merely damnum absque injuria ; Fourthly, it re- lates to the public, and is a popular offense. 1. As to the first, the king's writ constitutes the defendant a judge in this case, and gives him power to allow or disallow the plaintiff's vote. For this reason it is, that no action lies against a sheriff for taking insufficient bail, because he is the judge of their sufficiency. So is the case of Medcalf v. flodgeson, Hutt. 120; and their sufficiency is not traversable, 1 Lev. 86, Bentley v. Hore. Upon the same reason the resolution of the court is founded in the case of Hammond v. Howell, 2 Mod. 218, that no action lies against a man for what he does as a judge. 9 Hen. 6, 60, p. 9. 2. This is a parliamentary matter, and the parliament is to judge whether the plaintiff had a right of electing or not ; for it may be a dispute, whether the right of election be in a select num- ber, or in the populace ; and this is proper for the parliament to determine, and not for us ; and if we should take upon us to de- termine that he has a right to vote, and the parliament be of opin- ion that he has none, an inconvenience would follow from con- trary judgments. So in 2 Ventr. 37, Onslow's ease, it is ad- 486 PERSONAL SECURITY, LIBERTY, ETC. [Ch. 5. judged, that no action lies for a double return of members to serve in parliament. The resolution of the king's bench in the case of Barnardison v. Seame, 2 Lev. 114, was given on this par- ticular reason, that there had been a determination before in par- liament in favor of the plaintiff. And Hale said, we pursue the judgment of the parliament; but the plaintiff would have been too early, if he had come before ; and yet that judgment was re- versed. 3. It is not any matter of profit, either in presenti or in future. To raise an action upon the case, both damage and injury must concur, as is the case of 19 Hen. 6, 44, cited in Hob. 267. If a man forge a bond in another's name, no action upon the ease lies, till the bond be put in suit against the party : so here, it may be this refusal of the plaintiff's vote may be no injury to him, according as parliament shall decide the matter; for they may adjudge that he had no right to vote, whereby it will appear, the plaintiff was mistaken in his opinion as to his right of election, and conse- quently has sustained no injury by the defendant's denying to take his vote. 4. It is a matter which relates to the public, and is a kind of popular offense, and therefore no action is given to the party ; for by the same reason if one man may bring an action, a hundred may, and so actions infinite for one default ; which the law will not allow, as is agreed in "Williams's case, 5 Co. 73, a, and 104, b, Boulton's case. Perhaps in this case after the parliament have adjudged the plaintiff has a right of voting, an information maj' lie against the sheriff for his refusal to receive it. So the case ox Ford V. Hoskins, 2 Cro. 368 ; 2 Brown, 194. Such an action as this was never brought before, and therefore shall not be taken to lie, though that be not a conclusive reason. As to the ease of Ster- ling V. Turner, 2 Lev. 50, 2 Ventr. 50, where an action was brought by the plaintiff, who was a candidate for the place of bridge master of London, for refusing him a poll, and adjudged maintainable, there is a loss of a profitable place. So the case of Herring v. Finch, 2 Lev. 250, where the plaintiff brought an ac- tion on the case against the defendant, for that the plaintiff being a freeman, who had a voice m the election of mayor, the defend- ant being the present mayor refused lo admit his voice ; in that case the defendant is guilty of a breach of his faith: and in both these cases the plaintiff has no other remedy, either in parliament or anywhere else, as the plaintifl! in our case has. So that I am of opinion that the judgment ought to be given for the defendant upon the merits. But upon this declaration the plaintiff cannot maintain any action, for the plaintiff does not allege in his count, that the two biirgesses elected were returned, and if they were never returned, there is no damage to the plaintiff. See 2 Bulstr. 265. But I do not rely upon this fault in the declara- tion. [This iudgment was reversed in the house of lords and judgment given for the plaintiff by a vote of 50 to 15. 2 Ld. Ray. at p. 958. See- next case post for fuller account of the action of the house of lords.] Sec. 9.] PERSONAL SECURITY, LIBERTY, ETC. 487 See "Elections," Century Dig. § 53; Decennial and Am. Dig. Key No. Series § 57. JENKINS V. WALiDRON, 11 Johnson, 114, 120. 1814. Unlawful Interference with Right to Tote. [Action on the Case by "Waldron against Jenkins et al., inspectors of election, for refusing to receive his vote. Judgment against Jenkins et al., who carried the case to the supreme court hy writ of error. Re- versed.] Spencer, J. ... It is not alleged or proved that the in- spectors fraudulently or maliciously refused to receive Waldron 's vote ; and this we consider to be absolutely necessary to the main- tenance of an action against the inspectors of an election. The case principally relied on by the counsel for the defendant in error is that of Ashby v. "White, 2 Ld. Raym. 938. There the dec- laration alleged that the rejectioji of Ashby 's vote was done fraud- ulently and maliciously, and, although the jury found the de- fendant guilty, the .judgment mrs arrested by three judges, in op- position to the opinion of Chief Justice Holt. The judgment was afterwards reversed in the House of Lords. The reasons for the reversal do not appear in the report of the case ; but the ground of the reversal is distinctly stated in the resolutions of the Lords, in answer to the resolutions of the Commons, reprehending the bringing of the action and the judgment thereon. The first res- olution of the Lords states, "that by the known laws of this king- dom every freeholder, or other person having a right to give his vote at the election of members to serve in parliament, and being wilfully denied, or hindered so lo do, by the officers who ought to receive the same, may maintain an action in the queen's court against such officer to assert hi.s right, and to recover damages for the injury.'' 1 Bro. Par. Cas. 49, 1st ed. The case of Harman V. Tappende et al., 1 East, 555, and Drewy v. Coulton, in a note to that case, clearly show that this action is not maintainable, with- out stating and proving malice express or implied on the part of the officers. In the case in the text, Lavfrence, J., said: "There is no instance of an action of this sort maintained for an act aris- ing merely from error of judgment;" and he cited Mr. Justice WnjSON's opinion in Drewy v. Coulton with approbation. In that case the suit was for refusing the plaintiff's vote. Justice Wilson considered it as an action for misbehavior by a public officer in the discharge of his duty, and that the act must be ma- licious and wilful to render it a misbehavior ; and he held that no action would lie for a mistake in law. In speaking of the case of Ashby v. White, he considered it as having been determined by the House of Lords on that ground, from the resolutions en- tered by them. The whole of Judge Wilson's reasoning is clear, perspicuous and irresistible, and is fully confirmed in Harman V. Tappenden. It would, in our opinion, be opposed to all the principles of law, justice and sound policy, to hold that officers, called upon to exercise their deliberative judgments, are answer- 488 PERSONAL SECUKITY, LIBEETY, ETC. [Ch. 5. able for a mistake in law, either civilly or criminally, when their motives are pure, and untainted with fraud or malice. Judgment reversed. An action for damages was sustained against the selectmen of a town, who wrongfully erased a voter's name from the registry of votes. "The removal of plaintiff's name was, if wrongful, a direct Injury which de- prived him of his right to vote. For this an action may be maintained, although there are also highly penal provisions in the statute, intend- ing to provide for wilful violations of the rights of voters, under which the plaintiff does not seek to recover," Larned v. Wheeler, 140 Mass. 390, 5 N. E. 290. In Carter v. Harrison, 5 Blackford, 138, the principal cases supra are fully sustained, and it is said: "If persons when dis- charging the duties which devolved upon these defendants, wrongfully and maliciously deprive a man of his right to vote, they do him an in- tentional and serious injury, for which he may have an action against them. But if their refusal of a legal vote he merely in consequence of an error of judgment and no wilful wrong can be imputed to them, they ought not to be liable to a suit." See also Peavey v. Robbins, 48 N. C. 339. Eor the necessary allegations in the declaration or complaint in actions of this nature, see Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. 747. See "Elections," Century Dig. § 53; Decennial and Am. Dig. Key No. Series § 57. The right to fish and shoot on navigable waters is a privilege pos- sessed by the public. An action lies for damages against one who inter- feres with the exercise of such privileges by a private individual, and such interference will, in proper cases, be enjoined. Perrin v. Chandler, 69 Atl. 874, 17 L. R. A. (N. S.) 1239, and note. GORDON v. FARRAR, 2 Douglas (Mich.), 411, 415. 1847. Exemption of Election Officers from Civil Actions. [Special action on the Case by Gordon against Farrar et al., in- spectors of election, for refusing to let the plaintiff vote for a congress- man, etc. The jury rendered a special verdict fixing plaintiff's damages at 12% cents subject to the opinion of the court. The verdict found as facts that the plaintiff was of African descent though nearly white in color; and that he offered to vote and his vote was refused by the de- fendants, who were inspectors of election. The presiding judge re- served the question, as to what judgment should be rendered upon the verdict, for the supreme court, which court directed that judgment be entered against the plaintiff.] Miles, J. . . . This brings us to the question of judicial responsibility. ' ' The doctrine which holds a judge exempt from a civil suit or indictment for any act done or omitted to be done by him as a judge, has a deep root in the common law;" Per Kent, C. J., in 5 Johns. 291. "Courts of special and limited jurisdiction, while acting within the line of their authority, are protected as to error of judgment. " Cunningham v. Bucklin, 8 Cow. 183. In the case of Vanderheyden v. Young, 11 Johns. 159, which was an ac- tion of trespass against the members of a court-martial for the im- prisoning of the plaintiff, Spencer, J., in concluding the opinion delivered, says, it would be most mischievous and pernicious to subject men acting in a judicial capacity to actions, when their Sec. 5.] PERSONAL SECURITY, LIBERTY, ETC. 489 conduct is fair and impartial, when they are uninfluenced by any corrupt or improper motives, for a mere mistake in judgment. Authorities might be multiplied upon this subject, but ib cannot be necessary to cite cases to sustain a proposition so well estab- lished. In this view of the case, it is unnecessary to examine the cases referred to by plaintiff's coiuisel, to show that an action could be maintained against the inspectors of an election, acting ministerially, and without malice, for rejecting a lawful vote, as we put the judgment of this court upon the distinct ground that the inspectors, in determining upon the plaintiffs qualifications to vote as a white person, acted Judicially, and are therefore not liable to this action. Judgment for the defendants. See 10 Am. & Eng. Enc. Law, 673 et seq., and Bish. Non-Cont. Law, s 31. See "Elections," Century Dig. § 53; Decennial and Am. Dig. Key No Series, § 57. 490 RELATIVE RIGHTS. [Ch. 6. CHAPTER VI. INJURIES GROWING OUT OF RELATIVE RIGHTS. Sec. L Husband and Wipe. (a) Habeas Corpus. LISTER'S CASE, 8 Modern, 22. 1721. Right of Wife to Habeas Corpus When Restrained iy Her Husband. [Mr, Lister was married to Lady Rawlinson, a widow, who had, before her marriage with Lister, settled her estate in her own power, and out of his control. Afterwards, there being some disagreement between them, he, by a proper writing duly executed, covenanted to allow her so much every year for her maintenance, and that she might live sepa- ately from him; to which she agreed. They accordingly lived apart for some time. The husband, during this separation, pretended a desire to be reconciled to his wife, but in fact only wanting more money of her, she refused; whereupon he, with another person who assisted him, forced her into a coach as she was coming from church on a Sunday, and carried her into the mint, and kept her in custody under a strict confinement. And now she being brought into court by habeas corpus, her husband moved by his counsel, that the court would not interpose between husband and wife; that she could not deny herself to be his wife; and that by the law the husband has a coercive power over his wife.] The Court. An agreement between husband and wife to live separate, and that she shall have a separate maintenance, shall bind them both until they both agree to cohabit again; and if the wife be willing to return to her husband, no court will interpose to obstruct her. But as to the coercive power which the husband has over his wife, it is not a power to confine her; for by the law of England she is entitled to all reasonable liberty, if her behav- ior is not very bad ; and therefore she shall now be set at liberty, if it is her pleasure to be. She answered, that she desired to be at liberty. And thereupon she was discharged out of the custody of her husband, and went out of court with her son. But the court said, that the husband should have leave to write to her, and to use any lawful means in order to a reconciliation, provided she was willing to see him ; and that her children or serv- ants should not hinder him, unless by her order; but that when- ever she permitted him to come to her, he should not offer any violence or uncivil behavior to her person. Sec. 1 ft.] RELATIVE EIGHTS. 491 DOMINUS REX v. LISTER, 1 Strange, 478. 1721. Another Report of Lister's Case. The defendant married the Lady Rawliuson, and they disagree- ing, a deed of separation was executed, whereby some part of her fortune was made over to him, and the rest settled for her separate maintenance. In pursuance of this agreement they lived sepa- rately for some time, till Mr. Lister thought fit to seize on her, as she came out of church, and hurried her away to a remote place, where he kept her under a guard, till her relations found her out and brought a habeas corpus, by virtue of which she came before the court. And all this matter appearing, and that he de- clared he took her into his power in order to prevail with her tO' part with some of her separate maintenance ; the chief justice de- clared, and all the rest agreed, that where the wife will make an undue use of her liberty, either by squandering away the hus- band's estate, or going into lewd company; it is lawful for the husband, in order to preserve his honor and estate, to lay such a wife under restraint : but where nothing of that appears, he can- not justify depriving her of her liberty. That there was no color for what he did in this case, there being a separation by consent. And therefore they discharged the lady from her confinement, and being desired to bind the husband from attempting the like in the future, they refused to do that ; but, however, intimated to him that they should bear a heavy hand over him, if he acted con- trary to the declared opinion of the court. See Craton's case, 28 N. C. 164, inserted at ch. 1, § 2, ante. REGINA V. JACKSON, L. R. 1 Q. B. 671, Smith's Cases L. P. 473. 1891. Rights of Ilushand and Rights of Wife in Habeas Corpus for Custody of the Wife. [Habeas corpus sued out on behalf of Mrs. Jackson, wife of the de- fendant, to secure her liberation from enforced confinement to her hus- band's house. The husband insisted that, under his marital rights, he could force his wife to live with him, and that the courts could not re- lease her from his custody — it being admitted that the only ground of complaint on the part of the wife was, that she was confined to the hus- band's house, because otherwise she would not live with him. The court examined Mrs. Jackson as to her wishes, and, finding that her refusal voluntarily to live with her husband arose from her own free will, discharged her from the husband's restraint and permitted her to go where she pleased.] Lord Halsbury, Lord Chancellor. The court has satisfied itself that, in refusing to gro to and continue in her husband's house, Mrs. Jackson was acting of her own free will, and that she is not compelled or indeed, so far as present circumstances are con- cerned, induced by any one to refuse to continue in his house, and was not compelled to rem.ain where she was before he removed her. 492 EBLATIVE RIGHTS. [CJl. 6. I confess that some of the propositions which have been referred to during the argument are such as I should be reluctant to sup- pose ever to have been the law of England. More than a century ago it was boldly contended that slavery existed in England ; but, if any one were to set up such a contention now, it would be re- garded as ridiculous. In the same way, such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilized country. It is important to bear this in mind, for many of the statements, which have been relied upon, of a more moderate character and less outrageous to common feelings of humanity, are bound up with these ancient dicta to which I refer. The only justification, as it appears to me, for such ex- pressions as are found in some of the old books is that afforded by the free translation given to them by Hale, C. J., who sug- gests that "castigatio" may be taken to mean admonition merely. "Whether the word will bear that translation in these passages I cannot say ; but I am glad that some one even at that early period thought it inconsistent with the rights of free human creatures that such a power of personal chastisement of the wife should ex- ist. I only mention the subject, because it appears to me that the authorities cited for the husband were all tainted with this sort of notion of the absolute dominion of the husband over the wife. The only case referred to in which it was decided, as a question of law in an abstract form, unaccompanied by circumstances which might import a qualification, that a husband had a right to the custody of his wife, was Cochrane 's Case, 8 Dowl. 630. With re- gard to the proposition that the mere relation of husband and wife gives the husband complete dominion over the wife's person, apart from any circumstances of misconduct or any acts amount- ing to a proximate approach to misconduct on her part, which would give the husband a right to restrain her, none of the au- thorities cited appear to me to establish that proposition. I do not mean to lay it down as the law that there may not be some acts, acts of proximate approach to some misconduct, which might give the husband some right of physical interference with the wife's freedom, — for instance, if the wife were on the staircase about to join some person with whom she intended to elope, I could understand that there might be to some extent a right to re- strain the wife. It is not necessary, however, on the present occa- sion to discuss that question any further than to say that I can understand that some authority on the part of the husband of such a nature and so limited might well be justified according to any system of reasonable law. We have to determine this case on the return to the writ, which states in substance that, because the wife refused to live with the husband, he took her and has since detained her in his house, using no more force or restraint than was necessary to take her or to prevent her returning to her relations. Such is the return by which he justifies the admitted Sec. 1 a.] RELATIVE RIGHTS. 493 imprisonment of this lady. I do not know that I can express in sufficiently precise language the distinction which has been sug- gested between "imprisonment" and "confinement." If there be any such distinction, I should find that in this case there was imprisonment. I do not find any denial in the return that the lady is kept in imprisonment in the husband's house. The return seems to me to be based on the broad proposition that it is the right of the husband, where his wife has wilfully absented herself from him, to seize the person of his wife by force and detain her in his house until she shall be willing to restore to hira his conju- gal rights. I am not prepared to assent to such a proposition. The legislature has deprived the matrimonial causes court of the power to imprison for refusal to obey a decree for the restitution of conjugal rights. The husband's contention is that, whereas the court never had the power to seize and hand over the wife to the husband, but only the power lo imprison her as for a con- tempt for disobedience of the decree for restitution of conjugal rights, and even that power has now been taken away, the hus- band may himself of his own motion, if she withdraws from the conjugal consortium, seize and imprison her person until she con- sents to restore conjugal rights. I am of opinion that no such right exists or ever did exist. Moreover, assuming that sufficient authority existed for such a proposition, it is subject in any ease to the qualification which I observe is always imported, that, where the wife has a complaint of or reason to apprehend ill-usage of any sort, the court will never interfere to compel her to return to her husband. This brings me to the particular circumstances of this transaction. I am prepared to base my judgment on the gromid that the husband has no such authority as he claims ; that no English subject has such a right of his own motion to imprison another English subject, whether his wife or any one else — of course, I am speaking of persons of full age and sui juris; but, assuming that there were such authority, it would be subject to the qualification I have mentioned in the case of apprehended ill-usage, and I am of opinion that the facts in this case afford ample ground for refusing to allow the husband to retain the custody of his wife. It seems to have been thought that the ques- tion how far a lady may be dealt with in this way depends on the exact amount of force or violence used or pain inflicted. But is it nothing that a lady coming out of church on a Sunday afternoon is to be seized by a number of men and forcibly put into a car- riage and carried off? Must not the element of insult involved in such a transaction be considered? Then, if the lady's statement to the medical man be true, the moment she got into the house the husband took off her bonnet and threw it into the fire. The affida- Ant of the medical man states that the wife told him so: that affidavit is one of the husband's affidavits, and there is no denial that this happened by the husband. I confess to regarding with something like indignation the statement of the facts of this case, and the absence of a due sense of the delicacy and respect due to 494 RELATIVE EIGHTS. [Gh. 6. a wife whom the husband has sworn to cherish and protect. With regard to the statements as to the earlier part of the history of the case, contained in the husband's affidavits, I am unwilling to look at them for this reason : I do not deny that unqualified and uncontradicted they do make out a case in his favor, so far as showing that this alliance was entered into under circumstances which do not reflect any discredit on him. But I am unwilling to discuss these statements of the affidavits, because I do not know how far they can be trusted, inasmuch as the wife has not been permitted to have any opportunity of communicating with any legal adviser as to any matters on -which she might have contra- dieted those affidavits. Therefore, it seems to me that, though one has no right to say that one disbelieves those statements, it is impossible to rely upon them under the cii'cumstances. The re- sult is, in my opinion, that there is no power by law such as the husband claims to exercise, and, if there were, the facts give am- ple ground to the lady to apprehend violence in the future. Either of these grounds is sufficient to show that the return to this writ is bad, and that this lady must be restored to her lib- erty. Lord EsHER, M. R. One proposition that has been re- ferred to is that a husband has a right to beat his wife. I do not believe this ever was the law. Then it was said that, if the wife ^^'as extravagant, the husband might confine her, though he could not imprison her. The confinement there spoken of was clearly the deprivation of her liberty to go where she pleases. The coun- sel for the husband was obliged to admit that, if she was kept to one room, that would be imprisonment ; but he argued that, if she was only kept in the house, that was confinement only. That is a refinement too great for my intellect. I should say that confining a person to one house was imprisonment, just as much as confin- ing such person to one room. I do not believe that this contention is the law or ever was. It was said that by the law of England the husband has the custody of his wife. "What must be meant by "custody" in that proposition so used to us? It must mean the same sort of custody as a gaoler has of a prisoner. I protest that there is no such law in England. Cochrane 's Case, 8 Dowl. 630, was cited as deciding that the husband has a right to the custody, such custody, of his wife. I have read it carefully, and I think that it does so decide. The judgment, if I may respectfully say so, is not very exactly worded, and uses different expressions in many places where it means the same thing ; but that seems to me to be the result of it. It appears to me, if I am right in attribut- ing to it the meaning I have mentioned, that the decision in that case was wrong as to the law enunciated in it, and that it ought to be overruled. Sitting here, in the court of appeal, we are en- titled to overrule it. T do not believe that an English husband has by law any such rights over his wife's pereon, as have been suggested. I do not say that there may not be occasions on which he would have a right of restraint, though not of imprisonment. Sec. lb.] RELATIVE RIGHTS. 495 For instance, if a wife were about immediately to do something which would be to the dishonor of her husband — as if the husband saw his wife in the act of going to meet a paramour — I think that he might seize her and pull her back. That is not the right that is contended for in this case. The right really now contended for is that he may imprison his wife by way of punishment, or if he thinks that she is going to absent herself from him, for any purpose, however innocent of moral offense, he may imprison her, and it must go the full length that he may perpetually imprison her. I do not think that this is the law of England. The principal case is generally known and referred to as "The Cli- theroe Case," because the incidents upon which it is based arose at a little place named Clitheroe. The case is referred to in State v. .Tones, 132 N. C. at p. 1052, 43 S. E. 939, and in Powell v. Benthall, 136 N. C. at p. 154, 48 S. E. 598. See "A Century of Law Reform," 347, for valuable and interesting comments upon the principal case. It is hardly supposable that the principles laid down in the case will be disputed, in this day and generation, in any jurisdiction deriving its laws from the common law. That a husband may protect his honor, is a right still accorded to him by the Clitheroe case. As to this right see State V. Craton, 28 N. C. 164, inserted at ch. 1, § 2, (1), ante and note. Where the guardian of an infant husband took the husband, his ward, from the society of the wife, the wife was held entitled to have her hus- band released upon habeas corpus proceedings, to the end that he might resume his relations as her husband if he should choose to do so. Ex parte Chace, 58 Atl. 978, 69 L. R. A. 493. See "Husband and Wife," Cen- tury Dig. § 5-8; Decennial and Am. Dig. Key No. Series § 3. (b) Seduction. BIGAOUETTB v. PAULET, 134 Mass. 123. 1883. Mustand's Recovery for Seduction of Wife. Basis of the Action. Con- sortium. [Action of tort with four counts: (1) Seduction of wife; (2) Assault on wife; (3) Rape of wife; (4) Assault on wife. Verdict directed against the plaintiff. Plaintiff alleged exceptions. The opinion is on these exceptions. Exceptions sustained. The proof was that the defend- ant forcibly had connection with the plaintiff's wife — ^"violently and for- cibly ravished her; " that she continued to perform her usual household duties so that her husband suffered no pecuniary loss from the defend- ant's act. The judge ruled that as there was no seduction proven nor any loss of services, the action could not be maintained.] W. Allen, J. The plaintiff cannot maintain this action for an injury to the wife only ; he must prove that some right of his own in the person or conduct of his wife has been violated. A husband is not the master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium, — the right to the com'ugal fellowship of the wife, to her company, co-operation and aid in every conjugal rela- tion. Some acts of a stranger to a wife are of themselves inva- sions of the htisband's right, and necessarily injurious to him; 496 RELATIVE EIGHTS. [Ch. 6. others may or may not injure him, according to their conse- quences, and, in such cases, the injurious consequences must be proved, and it must be shown that the husband actually lost the company and assistance of the wife. This is illustrated in the statement of injuries to a husband in 3 Bl. Com. 139, 140, where such injuries are said to be principally three : ' ' Abduction, or tak- ing away a man's wife; adultery, or criminal conversation with her ; and beating or otherwise abusing her. ' ' The first two are of themselves wrongs to the husband, and his remedy is by action of trespass vi et armis. In regard to the others, the author's words are, "if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis. which must be brought in the names of the husband and wife jointly : but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of the wife, the law then gives him a separate remedy by an action of trespass, in the nature of an action upon the case, for this ill usage, per quod consortium amisit; in which he shall recover a satisfaction in damages." He states, as one of the circumstances affecting the damages in an ac- tion for adultery, ' ' the seduction or otherwise of the wife, founded on her previous behavior and character." It is usual in actions for criminal conversation to allege the seduction of the wife, and the consequent alienation of her affec- tions, and loss of her company and assistance, and sometimes of her services ; but these are matter of aggravation, except so far as they are the statement of a legal inference from the fact itself, and actual proof of them is not necessary to the husband 's right of action. The loss of consortium is presumed, although the wdfe may have herself been the seducer, or may not have been living with the husband. A husband who is living apart from his wife, if he has not renounced his marital rights, can maintain the ac- tion, and it is not necessary for him to prove alienation of the wife's affection, or actual loss of her society and assistance. See Chambers v. Caulfield, 6 East, 244; Wilton v. Webster, 7 C. & P. 198 ; Tundt v. Hartrunft, 41 111. 9. The essential injury to the husband consists in the defilement of the marriage bed — in the in- vasion of his exclusive right to marital intercourse with his wife, and to beget his own children. This presumes the loss of the consortium with his wife — of comfort in her society in that re- spect in which his right is peculiarly exclusive. Although actions of this nature have generally been brought where the alienation of the wife's affections, and actual deprivation of her society and assistance, have been the prominent injury to the husband, yet it is plain that the seduction of the wife, inducing her to violate her conjugal duties, and the injuries arising from that, are not the foundation of the action. The original and approved form of action is trespass vi et armis, and, though this form was adopted when the act was with the consent of the wife, it was for the rea- son, as given by Chief Justice Holt, that "the law indulges the Sec. 1 h.] RELATIVE RIGHTS. 497 husband with an action of assault and battery for the injury done to him, though it be with the consent of his wife, because the law ^¥ili not allow her a consent in such ease to the prejudice of her husband, because of the interest he has in her." Rigaut v. Gal- lisard, 7 Mod. 78; 2 Ld. Raym. 809; Holt, 501. See also Bac. Abr. Trespass, C. 1; and Marriage, F, 2; 2 Chit. PL (13th Am. ed.) 855; Reeves' Dom. Rel. 63. The fact that trespass, and not case, was the form of action, even when the wrong was accom- plished by the seduction of the wife, for the reason that the wife was deemed incapable of consent, and "force and violence were supposed in law to accompany this atrocious injury," indicates that the cause of action arose from acts committed upon the person of the wife, and not from influences exerted upon her mind — that the corrupting of the body rather than the mind of the wife was the original essential wrong to the husband. "We think that this action may be maintained upon the evidence offered, not for the actual loss of comfort, assistance, society and benefit, alleged in the second and fourth counts as consequences of the assaults set forth in them, but for the loss of the consortium with the wife which is implied from criminal conversation with her, whether with or against her will. Exceptions sustained. That the action lies though the intercourse with the wife is had by violence, see Egbert v. Greenwalt, 44 Mich. 245, 6 N. W, 654, 38 Am. Rep. 260; 21 Cyc. 1626; 8 Am. & Eng. Enc. Law, 262; and see 18 L. R. A. (N. S.) 587. The fact that the husband ill-treated his wife, was ill- tempered, and lived unhappily v/ith her, cannot be shown in mitigation of damages, Van Vector v. McKilllp, 7 Blackford, 578, which case also holds that either trespass vl et armis or trespass on the case will lie for seduction. That a man cannot maintain an action for the seduc- tion of his fiancee, see Case y. Smith, 107 Mich. 416, 65 N. W. 279, 31 L. R. A. 282. See 14 L. R. A. (N. S.) at pp. 749, 750 (previous bad char- acter or conduct of the wife, as a defense) ; 16 lb. 742, and note (effect of wife's being the aggressor); 16 lb. 674, and note (mental anguish). For the opposite rulings of Lords Kenyon and Eldon on the measure of damages, — Lord Kenyon allowing punitive damages, and Lord Eldon al- lowing compensatory damages — see 4 Camp. Lives C. J's, 118, 119. See "Husband and Wife," Century Dig. § 1128; Decennial and Am. Dig. Key No. Series § 341. MORRIS V. MILLER, 4 Burrows, 2057, 2059. 1767. "Grim. Con." Proof Seqiiisite in. [Action for Criminal Conversation with plaintiff's wife. Verdict for plaintiff subject to the opinion of the court upon this question: "Whether, to support an action of crim. con,., there must not be proof of an actual marriage?" Judgment of nonsuit against the plaintiff.] Lord Mansfield. I do not, at present, remember any action for criminal conversation, where an actual marriage was not proved. Proof of actual marriage is always used and understood in opposi- tion to proof by cohabitation, reputation, and other circumstances Remedies — 32. 498 RELATIVE BIGHTS. [Gh. 6. from which a marriage may be inferred. We will tell you our opinion to-morrow. Cur' advisare vult. Lord Mansfield now delivered the opinion of the court. We are all clearly of opinion, that in this kind of action, an action for criminal conversation with the plaintiff's wife, there must be evi- dence of a marriage in fact : acknowledgement, cohabitation, and reputation, are not sufficient to maintain this action. But we do not at present define what may or may not be evi- dence of a marriage in fact. This is a sort of criminal action. There is no other way of punishing this crime at common law. It shall not depend upon the mere reputation of a marriage, which arises from the conduct, or declarations, of the plaintiff himself. In prosecutions for bigamy, a marriage in fact must be proved. No inconvenience can happen by this determination ; but incon- venience might arise from a contrary determination, which might render persons liable to actions founded upon evidence made by the persons themselves who should bring the action. Judgment of nonsuit. See also Brinegar v. Cbaffln, 14 N. C. at p. Ill; 21 Cyc. 1630. See "Husband and Wife," Century Dig. § 1133; Decennial and Am. Dig. No Series S 348. KROBSSIN V. KELLER, 60 Minn. 372, 27 L. R. A. 372, 62 N. "W. 438. 1895. Wife's Right of Action for Seduction, etc., of Her Hushand. I The plaintiff and the defendant were both women. The plaintiff sues in Crim. Con. for seduction of her husband by the defendant. De- murrer. Demurrer overruled. Judgment against defendant, and she appealed. Reversed.] Collins, J. This is an action brought by a married woman against one of her own sex to recover damages, following, in a gen- eral way, the common-law form of declarations in crim. con. A general demurrer to the complaint was overruled in the court be- low, and by this appeal we are required to determine whether such an action can be maintained ; the right to recover being based solely on alleged adulterous acts between plaintiff's husband and the defendant. It is to be noticed here that it is not alleged that the defendant was the seducer of the husband, or that plaintiff has been deprived of his support ; nor is it an action for enticing the husband away, or for inducing him to abandon or desert his wife. We are quite safe in saying that at common law no such action could have been maintained. The injured husband alone brought crim. con., and he could sustain the action by simply showing adul- terous intercourse. The grounds on which the right to recover was based are well stated in Cooley on Torts, 224, and the princi- pal elements were the disgrace which attached to the plaintiff as the husband of the unfaithful wife, — and no such disgrace has ever rested upon the wife, if there was one, of the guilty defend- Sec. 1 &.] RELATIVE RIGHTS. 499 ant, — and, of more importance, the danger that a wife's infidelity might not only impose on her husband the support of children not his own, but still worse, cast discredit upon the legitimacy of those really begotten by him. Because of these elements, the man was always conclusively presumed to be the guilty party. In the eye of the law, the female could not even give her consent to the adul- terous acts, and, as a result, it was no defense in this form of ac- tion that the defendant had been enticed into criminal conversa- tion through the acts and practices of the woman. From this state- ment as to the grounds or elements constituting this action, it will be seen that the principal ones cannot possibly exist or be involved in a similar action brought by a wife. And what has been said about the unavailability of the defense that the defendant him- self was the victim, and not the seducer, is suggestive of what the courts might have to hold to be the rule of pleading, and what they might have to inquire into, u.pon the trial of an action of this kind. Would it be held, following the old rule we have mentioned, and for which the reason seems well founded, that it was no defense for the female sued to allege and prove that she was the party se- duced, and that the greater wrong and injury had been inflicted upon her, not upon the plaintiff wife ? or would the contrary rule prevail ? But we need not consider the subject further, for a mo- ment 's reflection will suggest the remarkable results flowing from the adoption of either rule. We have been cited to quite a number of cases, determined in the courts of last resort in this country, in which it has been held, without much stress being laid on statutes concerning the rights of married women, that an action may be maintained by a wife against one who wrongfully induces and procures her husband to abandon or send her away. Westlake v. Westlake, 34 Ohio St. 621 , the court being divided in opinion, is a leading case on this view of the subject. A later one, announcing the same doctrine, but made to rest much more on the married woman's acts in the state of Michigan and similar to our own, is Warren v. Warren, 89 Mich. 123, 50 N. W. 842. The plaintiff's counsel has been industrious in collecting this class of cases in his brief, and to them we add Price V. Price (Iowa), 60 N. W. 202. But even on this proposition, and despite broad statutory enactments affecting the rights of married women, the courts are not entirely agreed, for in Maine and Wis- consin it has been held that such an action cannot be maintained. Doe V. Eoe, 82 Me. 503, 20 Atl. 83 ; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522. But we need not decide, as between these cases, for the exact question raised by the demurrer here was not the one un- der consideration in any we have cited. They were brought for enticing away the husband; causing him to withdraw his support from the wife ; to abandon or desert her, — an entirely distinct and separate cause of action from that set out in the plaintiff's com- plaint. At common law this form of action was wholly different in pleadings and proof, as well as parties, from crim. con. It pro- ceeded, and still proceeds, upon different grounds, and we do not 500 RELATIVE RIGHTS. [Ch. 6. regard eases of that nature as authority in this. We are not un- mindful of the fact that plaintiff's counsel has presented two eases— Seaver V. Adams (N. H.), 19 Atl. 776, and Haynes v. Now- lin, 129 Ind. 581, 29 N. E. 389— in which it is held that an action by a wife against another woman, based on a complaint very much like this, will lie. But in these cases the authorities before re- ferred to are cited and relied on as directly in point. The courts rendering these decisions do not seem to have considered that there is, and inevitably must be, a marked distinction between an action charging a defendant with having induced and enticed a husband to withdraw his support from his wife and to abandon and desert her and one similar to crim. con. We think the difference notice- able and material, although we do not wish to be understood as holding that the one first mentioned will lie. That question is not before us, and we simply express our conviction that a wife cannot maintain an action in the nature of crim. eon. Such actions would "seem to be better calculated to inflict pain upon innocent mem- bers of the families of the parties than to secure redress to the persons injured. ' ' The power to bring such actions would furnish wives "with the means of inflicting untold misery upon others, with little hope of redress for themselves." We find nothing in our statutes in respect to the rights of married w^omen which indi- cates that the power to proceed in this form of action was intended to be conferred. Attention has been called to Gen. Laws 1887, c. 207, § 1. We have heretofore had occasion to comment upon that act, and have not changed our views as then expressed. Al- then V. Tarbox, 48 Minn. 18, 50 N. W. 1018. Order reversed. The principal case is not one for seduction, enticing away, or induc- ing the husband to abandon or desert his wife, but for crim. con. with the husband, and for that alone. It is not to be confounded with the cases of seduction, enticing, etc,. See Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, and read it In the light of the criticism upon it in the principal case. See also Gernerd v. Gernerd, 185 Pa. 233, 39 Atl. 884, 40 L. R. A. 549 (inserted in ch. 6, § 1, (c), post) and notes. It will be ob- served that the reason assigned for the rule of the common law does not come within the spirit of modern statutes conferring upon a feme covert the right to sue alone, etc. The reason referred to is: "The man was always conclusively presumed to be the guilty party. In the eye of the law, the female could not even give her consent to the adulterous acts, and, as a result, it was no defense in this form of action [crim. con. by the husband against the seducer of his wife] that the defendant had been enticed into criminal conversation through the acts and practices of the woman." "The legal inability of a wife to consent to the act"" is announced in Barbee v. Armstead, 32 N. C. at p. 535, Inserted in the next section. See "Husband and Wife," Century Dig. § 1128; Decennial and Am.. Dig- Key No. Series § 341. Sec. 1 C] RELATIVE RIGHTS. 501 (c) Enticing and Harboring. BARBEB V. ARMSTEAD et al., 32 N. C. 530, 535. 1849,. What is the Proper Form of Action for Enticing and Harboring a Wife? [Action of Trespass on the Case to recover damages for enticing the plaintiff's wife to leave him and for detaining her. Verdict and judg- ment against the plaintiff, and he appealed. Reversed. One of the defendants was the mother-in-law of the plaintiff, and lived with the defendant Armstead. She assigned as a reason for enticing her daughter to leave the plaintiff, that the plaintiff was lazy and failed to provide for his wife, and that she, the defendant, "did not wish her daughter to perish." Some time after the enticing away of his wife, the plaintiff entered into a written agreement with Armstead to the effect that Armstead might retain the custody of the wife with the right of the plaintiff to visit her. After deciding that this contract was invalid, the opinion proceeds : ] Nash, J. . . . Lord Brougham declares, in Warrender v. Warrender, 2 C. & Fin. 561, that, notwithstanding a deed of sep- aration had been executed, the husband had a right to reclaim his wife; his language is "no pledge can bind the party not to reclaim his or her conjugal rights, for such pledge is against the inherent condition of the married state, and against public policy." The plaintiff in this case, his license being by parol, had a right to re- claim his wife. His demand was a revocation of his license to the defendant to harbor her, and he was a wrong-doer in continuing to do so. Finally, the defendant insists, that the plaintiff has miscon- ceived his action, and ought to have sued in trespass. Mr. Chitty in the 1st vol. of his treatise on pleadings, page 91, says that tres- pass is the appropriate remedy for seducing away a wife, or seduc- ing a daughter ; but he does not say that it is, in either ease, the only remedy; and on the same page he states, that for the latter offense, it has been usual to declare in case. The same principles govern the action for each injury — the legal inability of the wife or child to assent to the act. Where the injury is both immediate and consequential, either action can be supported, page 147. If there be a doubt as to the form of the action in this case, it is whether the plaintiff could have maintained trespass for a deten- tion, even after a demand. . . Judgment reversed. See Powell v. Benthall, 136 N. C.. 145, 48 S. B. 598, inserted post in this subsection. See "Husband and Wife," Century Dig. § lllg; Decen- nial and Am. Dig. Key No. Series § 324. RINBHART V. BILLS, 82 Mo. 534, 52 Am. Rep. 385. 1884. Alienation of Wife's Affections Without Enticing Her Away or Seducing Her. [Bill in equity to enjoin the collection of a note given the defendant by the plaintiff, on the ground that it was procured by fraud and threats. Answer. Demurrer to answer. Demurrer overruled. Judgment against 502 RELATIVE RIGHTS. [Gil. 6. the plaintiff for the balance due the defendant on the note. Plaintiff ap- pealed. Affirmed. The answer set up that plaintiff made love to defendant's wife and ob- tained her consent to an elopement, although she repented and made a full confession to the defendant and abandoned her idea of eloping; that defendant threatened to sue the plaintiff for his conduct and, in compro- mise, the plaintiff executed the note in controversy. The balance due on the note was set up by the defendant as a counterclaim.] Martin, C. . . Only one question is presented to us in the record for determination. That question involves the sufficiency of the defense, and is raised on the demurrer and in the motions made after judgment. The plaintiff contends that as the ansvper fails to show that defendant's wife had been actually debauched or seduced away from him, no wrong had been inflicted upon him for which an action lies, and that the note taken in settlement of the supposed wrong was void as being without consideration. This position cannot be maintained upon either principle or authority. The injury to the defendant consists in the alienation of his wife 's affections with malice or improper motives. Debauchery and elopement when they occur are only the immediate and legitimate consequences of the wrong. That the injury in this instance did not culminate in adultery and elopement is a fact not due to the plaintiff's forbearance, but to the wife's prudent reflection and laudable repentance. The alienation of the wife's affections for which the law gives redress may be accomplished notwithstanding her continued residence under her husband's roof. Indeed it has been not infrequently remarked by authors and jurists that sucli continued residence after the alienation has been effected, so far from leaving the husband without a good cause of action, contrib- utes an aggravation to his injury from which an elopement might well be accepted in the nature of an alleviation. Sehouler, Dom. Rel. 57 ; Cooley, Torts, 224 ; Hoard v. Peck, 56 Barb. 202 ; Heer- mance v. James, 47 Barb. 120. I think it would be difficult to re- gard it in any other light in the absence of contrition or change of heart. The demurrer admits the salacious and seductive solicita- tions of the plaintiff, extending over a period of eighteen months. It also admits the fact of actual estrangement and alienation which constitutes the essence of the offense. Every thing which follows afterward can be only in the nature of aggravation, mitigation or reparation of the wrong inflicted upon the sanctity of the defend- ant's home. I may add here, by way of allusion to the consideration of the note, that the compromise of a doubtful claim asserted in good faith furnishes a valuable consideration to support a promise. 1 Pars. Cont. 438, § 4, 6 Ed. The judgment is affirmed. See 3 L. R. A. (N. S.) 470 (conspiracy to alienate affections); 16 lb. 742, and not© (the wife being the aggressive party to the alienation). See "Husband and Wife," Century Dig. § 1118; Decennial and Am. Dig. Key No. Series § 324. Sec. 1 C] RELATIVE RIGHTS. 503 BBRTHON V. CARTWRIGHT, 2 Espinasse, 480. 1796. Harboring a Wife Who Leaves the Husband for Good Cause. Case for seducing the plaintiff 's wife, detaining her, and thereby depriving him of her society. Plea of not guilty. The plaintiff proved the elopement of his M'ife from his home, and her reception and entertainment by the defendant. The defense was, that the plaintiff's wife had been compelled to leave his house in consequence of ill treatment, and had been re- ceived by the defendant out of motives of humanity. It was ruled by Lord Kenyon, that if a husband ill treats his wife so that she is forced to leave his house through fear of bodily injury, a person may safely, nay honorably, receive and protect her; and that of course in such case no action was maintainable. The plaintiff was nonsuited. See "Husband and Wife," Century Dig. § 1118; Decennial and Am. Dig. Key No. Series § 324. HOLTZ V. DICK, 42 Ohio St. 23, 51 Am. Rep. 791. 1884. Enticing and Harboring Minor Wife by Her Parents. General Rules Governing Enticing and Harboring in All Cases. [Dick sued Holtz and his wife, the parents of Dick's wife, for the al- leged malicious enticing away of his wife. The defense was that Dick's wife left him of her own uninfluenced will. Verdict and judgment against Holtz and wife. The case comes before the supreme court on a petition in error filed by Holtz and wife in the lower court, from which the cause was transferred to the supreme court for decision of the ques- tion raised by the petition. Affirmed. The wife was only sixteen years of age. She and her husband got along well enough together; but Mrs. Holtz hated her son-in-law and per- suaded his wife to leave him out of malice towards him, and not for the good of her daughter. Mrs. Holtz' husband simply submitted to her acts because of her dominion over him. After disposing of minor points of evidence, etc., the opinion proceeds:] Okey, J. . . The remaining question relates to the law applicable to the case. A man properly demeaning himself is entitled to the society and assistance of his wife against all the world. "Whoever unlawfully deprives him of such society or as- sistance is liable to an action. In estimating damages, however, each case must be determined by the circumstances attending it, and the motive of the intervening person must ever be kept in view. The cases may be properly divided into two classes. One where a villain interferes for the purpose of seduction, or the sole ground of interference is malice; the other where friends, usually parents, interfere for the protection of the wife and the offspring, if any. In the first class the husband, if without fault, is always entitled to damages ; in the latter, if the motive of the intervening 504 RELATIVE RIGHTS. [Gh. 6. person was pure, and the appearance seemed to indicate necessity for interference, there can be no recovery, though no occasion for interference really existed. Much will be forgiven the parents of a wife who honestly interfere in her behalf, though the interference was wholly unnecessary, and may have been detrimental to her interest and happiness, as well as that of her husband ; still, where the motive is not protection of the wife, but hatred and ill will of the husband, it is no answer to his action for such interference that the offenders were his wife's parents. Friend v. Thompson, Wrieht, 636, 639 ; Rabe v. Hanna, 5 Ohio, 530; Preston v. Bowers, 13 Ohio St. 1; Schouler's Hus. & W. § 64; Cooky's Torts, 224. . As James Dick was living happily with his wife, and it was the interest and desire of both that they should continue so to live, .we deny that the parents had authority to cause them to sep- arate on the mere groujid that she had not arrived at the age of sixteen years and the marriage was without such parents ' consent ; and the motive having been malice toward Dick and not protection to Irena, we hold that the action was maintainable, even if her age was as her parents claimed it to be. I confess to some reluctance to the entry of judgment against Frederick Holtz. But if the law as to the liability of the husband for the tort of his wife is wrong, the evil must be remedied by the legislature and not this court. Judgment affirmed. See Brown v. Brown, 124 N. C. 19, 32 S. E. 320, which sustains the principal case, and goes on to show that while parents are liable for ma- liciously enticing their infant children to abandon their spouses, still the bona flde acts of parents — ^not wanton or malicious — in bringing about such separations, are treated with much greater leniency than are the otflcious intermeddlings of strangers. See "Husband and Wife," Century Dig. § 1118; Decennial and Am. Dig. Key No. Series § 324. POWELL V. BENTHALL, 136 N. C. 145, 1'53, 48 S. B. 598. 1904. Enticing and Harhoring. Acts of Strangers and of Parents and Other Relatives. [Action by a husband against his sister-in-law and her husband, (1) For enticing away his wife and alienating her affections; (2) For harboring his wife after being forbidden to do so. Verdict against the plaintiff on the first cause of action, and against the defendants on the second cause of action. Judgment against defendants, and they ap- pealed. Reversed. The defense set up was that the plaintiff's wife left him of her own accord and with his consent, to seek for work; that she refused to return to him; that defendants acted without malice and because of their rela- tionship to the wife of the plaintiff and to "assist a neglected relative in her unhappy condition." The defendants asked the court to charge the jury: "The defendants had the right to permit their sister to live in their house, and to give her such countenance, comfort, and support as her condition seemed to require, although she had separated from her husband without just cause, and although the plaintiff, after said sep- aration, forbade the defendants to give shelter, comfort, and support and protection to his wife; and the jury should answer the second Issue 'No,' Sec. 1 c] RELATIVE RIGHTS. 505 unless they find that the defendants wrongfully Induced the plaintiff's wife to leave her husband — alienate her affections from him — notwith- standing the defendants did give to the plaintiff's wife, after she left her husband, such shelter, comfort, and support." The court refused the prayer, and defendants excepted.] Connor, J. . . We should be reluctant to excuse or jus- tify the conduct of either husband or wife, or of third persons, en- couraging separation or withdrawal of marital rights or refusal to recognize or discharge marital duties. We should adhere strictly to the wise and salutary principles announced and enforced by the great judges who have preceded us as essential to the sanctity of this relation which forms the basis of our social and domestic life. On the other hand, we should be equally reluctant to adhere to the conceptions of a past age regarding the status of the wife and the power of the husband over her person and conduct. We fully sym- pathize with the statement made in "A Century of Law Reform" that there is no branch or department of the law in which the change has been greater or the contrast more violent. It is not necessary to cite decisions of this court to show that our predeces- sors have recognized, and given expression to the change of public conscience and policy in this respect. Thirty years ago this court, speaking by Settle, J., said: "We may assume that the old doc- trine that a husband has a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the courts have advanced from that barbarism until they have reached the position that the husband has no right to chastise his wife under any circumstances." State v. Oliver, 70 N. C. 60. In 1891 Lord Chancellor Halsbury, in Regina v. Jackson, 1 L. R. R. B. D. 671, said: "The court has satisfied itself that in refusing to go and continue in her husband's house [the petitioner] was acting of her own free will, and that she is not compelled or induced by any one to refuse to continue to remain where she was before he removed her. I confess that some of the proposi - tions which have been referred to during the argument are such as I should be reluctant to suppose ever to have been the law of England. ... In the same way such quaint and absurd dicta as are to be found in the books as to the right of the husband over his wife in respect of personal chastisement are not, I think, ca- pable of being cited as authorities in a court of justice in this or any civilized country. ' ' He says : ' ' The return seems to me to be based on the broad proposition that it is the right of the husband, when his wife has wilfully absented herself from him, to seize the person of his wife by force, and detain her in his house until she shall be willing to restore him to his conjugal rights. I am not prepared to assent to such a proposition." In this case opinions were written by the Master of the Rolls, and Fr3^ L. J., concurring with the Chancellor. The case is regarded as the latest and best judicial expression of the law conforming to the sentiment of the most enlightened statesmen and jurists of the age. So fnr back as 1791, Lord Kenyon, who certainly was not a radical judicial re- 506 RELATIVE BIGHTS. [Ch. 6. former, said in Phillips v. Squire, Peake, Rep. 82: "The ground of this action is that the defendant retains the plaintiff's wife against the inclination of her husband, whose behavior he knows to be proper ; or from selfish or criminal motives. But where she is re- ceived from principles of humanity the action cannot be sup- ported. If it could, the most dangerous consequences would ensue, for no one would venture to protect a married woman. It is of no consequence whether the wife's representation was true or false. This kind of action materially differs from that of harboring an apprentice, the ground of that action being the loss of apprentice 's services." The plaintiff was nonsuited. In Turner v. Bstes, 3 Mass. 317, the court said: "The defendant is charged with enticing the plaintiff's wife. No evidence was given at the trial of any en- ticing. As to the charge of harboring, the sum of the evidence is that the defendant pennitted his wife's mother to remain in his house, without using force to expel her. He was not obliged to use force. ' ' These authorities fully sustain the defendants ' exception to the charge. We think that his honor was also in error in placing upon the defendants the burden of showing justification. Barnes v. Allen, *40 N. Y. 390. The learned justice says: "The gist of the action, as all the authorities agree, is the loss, without justifiable cause, of the comfort, society, and services of the wife. In maintaining the action two questions principally arise : Was the loss occasioned by the voluntary action of the wife upon justifiable cause, or was it occasioned by the acts or persuasion of the defendant without any real cause, and in bad faith towards the plaintiff? On both these questions the plaintiff must give evidence tending to establish his case, or his action must fail." The error in the instruction in this particular is that it overlooks entirely the motives, and casts the burden of proving the truth of the wife's statement upon the de- fendant. We are further of the opinion that his honor erred in telling the jury that they could not consider the relation of the defendants to the plaintiff's wife. Upon the question of good faith the relation- ship was most material. It cannot be that a sister and her husband are to be treated as officious intermeddlers and wrongdoers for giving food and shelter to plaintiff's wife and permitting her to remain in their home. We do not intend to say that, if it ap- peared that they actively procured the separation, or counseled and advised its continuance, they would not be liable; but where the question of motive is essential to be shown the relationship is not only relevant, but most material. After a careful examination of the testimony, we fail to see any evidence fit to be submitted to the jury to sustain the affirmative of the issue. In view of all the evidence, we think his honor should have given the instruction asked upon the second issue. He could not have dismissed the action pending the trial upon the first issue. The finding upon that issue practically put an end to the case. The plaintiff relied upon the ease of Johnson v. Allen, 100 N. C. Sec. 1 C] RELATIVE RIGHTS. 507 131, 5 S. E. 666. That was a case in which the plaintiff sued for "enticing, harboring, and debauching" his wife. The testimony was ample to sustain the allegation. The language of the court must be taken in the light of the testimony. There is a vast differ- ence between the case of a man who entices another man's wife away from him and debauches her and the facts in this case. The conclusion to which we have arrived renders it unnecessary to pass upon the exceptions of the defendants' counsel in regard to the form of the issue and the verdict. It is not improper to say, however, that in the light of what is said in Pearce v. Fisher, 133 N. C. 333, 45 S. E. 638, the exception should be sustained. For the error pointed out, there must be a new trial. That the marriage of an infant daughter works her emancipation from parental control, see Wilkinson v. Dellinger, 126 N. C. 462, 35 S. B. 819; 80 N. W. 877, 46 L. R. A. 440, and notes; and the notes to State v. Stigall, 22 N. J. L. 286, inserted at sec. 2 of this chapter. Whether or not a hushand can recover for the harboring of his wife when they are living apart under articles of separation— which articles he undertakes to re- pudiate — presents a question of some interest. See Barbee v. Armstead, 32 N. C. 530, inserted ante in this subsection; A Century of Law Reform, 348; Smith v. King, 107 N. C. 273, 12 S. E. 57; Bversley's Dom. Rel. 434 et seq.; 25 Am. & Eng. Enc. L. 476; Metcalf v. Tiffany, 106 Mich. 504, 64 N. W. 479. That damages may be recovered for an unlawful entry upon land with intent to debauch the owner's wife, see Brame v. Clark, 148 N. C. 364, 62 S. E. 418, inserted at ch. 3, sec. 12, ante. It is a felony in North Caro- lina to elope with or abduct the wife of another, see Revisal, sec. 3360. See "Husband and Wife," Century Dig. § 1118; Decennial and Am. Dig. Key No. Series § 324. GBRNERD v. GERNERD, 185 Penn. 233, 39 Atl. 884, 40 L. R. A. 549. 1898. When the Wife Can and Cannot Sue for Enticing Her Husiand from Her. or Tortiously Inducing or Causing Him to Abandon Her. [Action by the wife against her father-in-law for inducing her husband to abandon her, by means of injurious words spoken of and concerning her. Judgment against defendant, and he appealed. Affirmed.] Pell, J. The right of a husband to maintain an action against one who has wrongfully induced his wife to separate from him seems not to have been doubted since the case of Winsmore v. Greenbank (decided in 1745), Willes, 577. The right of a wife to maintain an action for the same cause has been denied, because of the common-law unity of husband and wife, and of her want of property in his society and assistance. There was certainly an in- consistency in permitting a recovery when her husband was a nec- essary party to the action, and she had no separate legal existence or interest, and the damages recovered would belong to him, but the gist of the action is the same in either case. There is no sub- stantial difference in the right which each has to the society, com- panionship, and aid of the other, and the injury is the same whether it affects the husband or the wife. "Where the wife has 508 RELATIVE RIGHTS. [Ch. 6. been freed from her eommon-law disabilities, and may sue in her own name and right for torts done lier, we see no reason to doubt her right to maintain an action against one who has wrongfully induced her husband to leave her. Generally, this right has been recognized and sustained in jurisdictions where she has the capac- ity to sue, notably in the cases of Bennett v. Bennett, 116 N. Y. 584, 23 N. B. 17 ; Foot v. Card, 58 Conn. 4, 18 Atl. 1027 ; Seaver v. Adams (N. H.), 19 Atl. 776; Westlake v. Westlake, 34 Ohio St, 621; Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389; Warren v, Warren, 89 Mich. 123, 50 N. W. 842; Bassett v. Bassett, 20 111. App. 543; Price v. Price, 91 Iowa, 693, 60 N. W. 202; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328; Mehrhoff v. Mehrhoff (C. C), 26 Fed. 13. The New York and Indiana cases cited over- rule the earlier cases in those states in which a different conclusion had been reached. The only decisions in which we find the right denied are Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, and Doe v. Roe, 82 Me. 503, 20 Atl. 83. Of late years, the right of the wife to sue has generally been maintained by text writers. It is said in Bigelow, Torts, 153 : " To entice away or corrupt the mind and affection of one 's consort is a civil wrong, for which the offender is liable to the injured husband or wife." And in Cooley, Torts, 228 : ' ' We see no reason why such an action should not be sup- ported, where, by statute, the wife is allowed for her own benefit, to sue for personal wrongs suffered by her." In 1 Jag. Torts. p. 467, many of the cases on the subject are referred to, and the conclusion is thus stated : ' ' On the other hand, it has been insisted that in natural justice no reason exists why the right of the wife to maintain an action against the seducer of her husband should not be coextensive with the right of action against her seducer. The weight of authorities and the tendency of the legislation strongly incline to the latter opinion." The same proposition is stated in 1 Am. ^ Eng. Enc. Law (2d ed.) p. 166, and in 1 Bish. Mar. & Div. § 1358. The defendant in this action was the father of the plaintiff's husband, and the case was one to be carefully guarded at the trial. The intent with which he acted was material in deter- mining his liability. It was his right to advise his son. and in so doing in good faith, and with a proper motive, he should not be re- garded in the same light as a mere intermeddler. A clear case of want of justification on the part of the parents should be shown before they should be held responsible. Cooley, Torts, 265 ; Hutch- eson v. Peck, 5 Johns. 196 ; Bennett v. Smith, 21 Barb. 439 ; Hul- ing V. Ruling, 32 111. App. 519; Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417; Fratini v. Caslini (Vt), 44 Am. Rep. 850, notn (S. C, 29 Atl. 252) . On the trial the plaintiff was held to distinct and clear proof that the defendant wrongfully and maliciously caused her husband to abandon her. Every right which the de- fendant could properly claim in this regard was carefully stated in a very clear and adequate charge. The claim that the action was, in effect, an action for words spoken, and consequently barred by the statute of limitations, cannot be sustained. It was not either in Sec. 1 d.] reijAtjve rights. 509 form or in substance an action of slander, and the words proven were only one of the many means employed by the defendant to effect his purpose. The judgment is affirmed. See Kroessin v. Keller, 60 Minn. 372, Inserted at sec. 1 (b), ante, and note, for the right of the wife to sue for seduction of her husband. For other authorities on enticing a husband from his wife, see Brown v. Brown, 121 N. C. 8, 27 S. E. 998, which holds that a wife who is aban- doned may maintain such an action in North Carolina, because, being abandoned, she becomes a free trader under the statute; 1 Am. & Eng. Enc. L. 166; 15 lb. 864-866. See 4 U R. A. (N. S.) 643, 3 lb. 470, and notes; and note to Rinehart v. Bills, inserted ante in this section. See "Husband and Wife," Century Dig. § 1119; Decennial and Am. Dig. Key No. Series § 325. (d) Injuries to the Wife by Her Husband and by Third Persons. HOLLBMAN v. HARWARD, 119 N. C. 150, 152-155, 25 S. E. 972. 1896. Selling Deleterious Drugs to the Wife. Husband's Right of Action. [Action for damages resulting from sale of laudanum to plaintiff's wife. Demurrer by defendant. Demurrer sustained. Judgment against the plaintiff, from which he appealed. Reversed. The complaint alleged that defendant was a druggist and knew that plaintiff's wife was using large quantities of laudanum to the injury of her health; that plaintiff notified the defendant not to sell to her; that defendant nevertheless sold laudanum to her; and that plaintiff sustained injuries in consequence.] Montgomery, J. . . . The question, then, is, can the plain- tiff, upon the facts set out in the complaint, maintain an action? The action is a novel one. With the exception of the case of Hoard V. Peck, 56 Barb. 202, which, in its most important aspects, resem- bles the one before us, we have been able to find no precedent in the English common-law courts or in the courts of any of our states. It does not follow, however, that because the case is new the action cannot be maintained. If a principle upon which to base an action exists, it can be no good objection that the case is a new one. It is contended for the defendants, though, that there i.s no principle of the common law upon which this action can be sus- tained, and that our own statutory law gives no such remedy as the plaintiff seeks in this action for the wrong done to him by the defendants, and that the novelty of the action, together with the silence of the elementary books on the subject-matter of the com- plaint, while not conclusive, furnishes strong countenance to their contention. It is claimed for the defendants that while, in the ab- stract, such facts as are stated in the complaint would make the parties charged guilty of a great moral wrong, there would be no legal liability incurred therefor. It was argued for the defendants that there was no legal obligation resting upon themselves not to sell the drug, as is alleged, to the plaintiff's wife, or upon the wife not to use it ; that many of the ancient restrictions upon the rights of married women had been repealed by recent legislation, or modified by a more liberal judicial construction; that a married 510 RELATIVE RIGHTS. [Ch. 6. woman was ordinarily free to go where she would, and that the husband could not arbitrarily deprive her of her liberty, nor use violence against her under any circumstances, except in self- defense, and that, if he could not restrain her locomotion and her will, he could not prevent her from buying the drug and using it; that the wife's duty to honor and obey her husband, to give to their children motherly care, to render all proper service in the household, and to give him her companionship and love, was a moral duty, but that they could not be enforced by any power of the law, if the wife refused to discharge them. But, notwithstand- ing the claim of the plaintiff, we think this action rests upon a principle, — a principle not new, but one sound and consistent. The principle is this: "Whoever does an injury to another is liable in damages to the extent of that injury. It matters not whether the injury is to the property, or the rights, or the reputation of an- other. " Story, J., in Dexter v. Spear, 4 Mason, 115, Fed. Gas. No. 3,867. And also in the third book of Blackstone's Commen- taries (eh. 8, p. 123) it is written: "Wherever the common law gives a right, or prohibits an injury, it also gives a remedy by ac- tion." A married woman still owes to her husband, notwithstand- ing her greatly improved legal status, the duty of companionship, and of rendering all such services in his home as her relations of wife and mother require of her. The husband, as a matter of law. is entitled to her time, her wages, her earnings, and the product of her labor, skill, and industry. He may contract to furnish her services to others, and may sue for them, as for their loss, in his o^vn name. And it seems to be a most reasonable proposition ol law that whoever wilfully joins with a married woman in doing an act which deprives her husband of her services and of her com- panionship is liable to the husband in damages for his conduct. And the defendants owed the plaintiff the legal duty not to sell to his wife opium in the form of large quantities of laudanum as a beverage, knowing that she was, by using them, destroying her mind and body, and thereby causing loss to the husband. The de- fendants and the wife joined in doing acts injurious to the rights of the husband. From the facts stated in the complaint, the de- fendants were just as responsible as if they had forced her to take the drug, for they had their part in forming the habit in her, and continued the sale of it to her after she had no power to control herself and resist the thirst ; and that, too, after the repeated warnings and protests of the husband. There is no difference be- tween the principle involved in this action and the principle upon which a husband can recover from a third person damages for as- sault and battery upon his wife. That assaults and batteries are made criminal offenses makes no difference, the foundation of the husband's suit being, not for the public offense, but for damages, — compensation for the injury which he has sustained on account of the loss of his wife's services. The sale of the laudanum by the defendants to the plaintiff's wife, under the circumstances set out in the complaint, was wilful and unlawful, and the husband's in- Sec. 1 d.] RELATIVE EIGHTS. 511 jury is just as great as if his wife had been disabled from a bat tery committed on her, although the unlawful act is not indictable. . . Error. In a "Note by the Reporter" to Rinehart v. Bills, 52 Am. Rep. 385, at p. .S88, it is said: "The case of Hoard v. Peck; 56 Barb. 202, cited in the opinion above, is sul generis, and probably will always remain so. It was there held that a husband may maintain an action against an apothe- cary, who, without the husband's knowledge, habitually sells laudanum to the wife, knowing that she uses it to the impairment of her mind and body. It would seem that if this were law there would be no need of the civil damage acts which grant a similar redress to the wife against those who sell intoxicating liquors to the husband." See "Husband and Wife,'" Century Dig. §§ 767, 768; Decennial and Am. Dig. Key No. Series § 209. SMITH V. CITY OF ST. JOSEPH, 55 Mo. 456, 17 Am. Rep. 660. 1874. Injury to the Wife. Remedies of the Husband and Wife Respectively. [Action by the husband for damages incident to loss of services of his wife and to necessary expenses incurred in her cure, in consequence of injuries suffered by the wife through the alleged negligence of the de- fendant. Judgment against (he defendant. Defendant appealed. Af- firmed. In an action brought against the defendant by the plaintiff and his wife, the wife had recovered for the injuries she had sustained and for the physical suffering she endured. This recovery by the wife — her hus- band having been joined with her as co-plaintiff for conformity only — was relied upon as a defense to this action by the husband. The facts appear in the latter part of the opinion.] Wagner, J. . . . The main questions relied on for a' re- versal of this judgment are, (1) that the former judgment was a bar to the maintenance of this action, and (2) that the court erred in its instructions in reference to damages. The judgment ren- dered in favor of plaintiff and wife in the former action was solely for the damages resulting to the wife in consequence of the injuries received by her. She was the meritorious cause of the action, and the husband was merely joined under the provisions of the statute to enable her to sue. But the damages there were strictly confined to her personal injuries, and the expenses incurred by the hus- band, and loss of service, which constitute the foundation of this action, were not in that case. In some of the New England states, under the provisions of statutes regulating the subject, it is heVl that but one action can be maintained. Those statutes permit all the damages incident to and growing out of the injury to be re- covered in the same suit. They provide for but one action. But in the other states, where no such statutory regulations exist, a contrary doctrine is held. In the case of McKinney v. Western Stage Co,. 4 Iowa, 420, the court says: "We suppose that at com- mon law the rule is well settled that for an injury to the person of the wife during coverture, by battery, or to her character by slan- der or any such injury, the wife must join with the husband in the 512 RELATIVE BIGHTS. [Ch. 6. suit. "When, however, the injury is such that the husband receives a separate loss or damage, as, if in consequence of the battery, he has been deprived of her society, or has been put to expense, he may bring a separate action in his own name. Barnes v. Hurd, .11 Mass. 59 ; Lewis v. Babcock, 18 Johns. 443 ; 2 Saund. PI. & Ev. 568; and this rule we do not understand to be changed by the Code." ^ The Indiana court holds, also, that the established doctrine is, that for a tort committed upon a wife two actions will lie, one by the husband alone for the loss of service, expenses, etc., and thr- other by the husband and wife for the injury to her person. Rog- ers v. Smith, 17 Ind. 323; Long v. Morrison, 14 Ind. 595; Ohio & M. R. R. Co. V. Tindall, 13 Ind. 366 ; Boyd v. Blaisdell, 15 Ind. 73. In the ease of Fuller v. Naugatuck R. R. Co., 21 Conn. 557, it was said that it was clear that the plaintiffs could not recover for the wife 's personal injury and also for the expenses of her cure in the same action. On the former ground of damages, the husband would have no interest, while the latter would accrue to him alone, and so the two claims would be incompatible with each other. The same principle has often been adjudged in different cases and laid down in elementary treatises. Reeves' Dom. Rel. 291; "Whitney V. Hitchcock, 4 Denio, 461; Cowden v. Wright, 24 "Wend. 429; Bartley v. Ritchmyer, 4 N. T. 38; Klingman v. Holmes, 54 Mo. 304. We think there can be no doubt respecting the maintenance of the action, and that there is no bar in consequence of the pre- vious recovery. On the question of damages the court instructed the jury that if they found for the plaintiff they should assess his damage at such sum as was shown by the evidence would compensate him for the expenses he had necessarily incurred, in nursing and taking care of his wife for the time she was diseased and disabled on ac- count of the injury she had sustained in falling over the embank- ment, including compensation for his services in waiting upon her, doctors' bills, and cost of medicine, and also for the loss of her services directly resulting from the injury. The only serious ob- jection made to this instruction is that it allows the plaintiff to recover compensation for his services in waiting upon his wife during her illness. Under all the circumstances surrounding this case I think the instruction was right. [FACTS.] The evidence shows that the wife's thigh was broken by the fall; that for two months she was so utterly helpless that her husband had to be con- stantly at her bedside and assist her even to move. During all this time he did not take off his clothes, as his attentions were required to be unceasing and unremitting. The husband then had to neg- lect all his business to perform this painful duty, and if he had not done it in person he would have been under the necessity of hiring some one to do it in his stead. In this aspect of the case, therefore, I think the instruction was justified. There is no reason for interference on the ground that the dam- ages were excessive. The verdict was for $3,500, and the wife was Sec. 1 d.'\ RELATIVE RIGHTS. 513 confined to her bed for a year before she could even get around the room on crutches ; she was constantly using medicine all that time, and under the attendance of physicians, and extra servants had to be employed. Before the accident, she was a healthy young woman about thirty-one years old and a good housekeeper, super- intended the domestic affairs of the family, and did all the sewing for them. She had a family of six small children, and they and her husband have lost the benefit of her services. Seven years had elapsed from the occurrence of the injury up to the time of the trial, and the husband for that length of time had been deprived of her services, and will be as long as she lives, for it is conceded that the accident had rendered her a cripple for life. Taking all these things together, and the estimate placed upon the loss of services by the witnesses, and the actiial expenses laid out and in- curred by the plaintiff, we are not prepared to say that the jury placed the compensation too high. Judgment affirmed. "If one slanders a married woman or commits an assault and battery upon her, the action for injuring her must he in the name of husband and wife, although, in the latter instance, if there be any damage besides the pain suffered by the wife — as a loss of service, or an injury to her clothes, or medical bills — the husband may sue alone and allege special damage. So, if one drive a carriage so negligently as to run against a married woman, in an action for the personal injury to her, she is a nec- essary party as the husband cannot sue alone without alleging special damage." Pearson, C. J., in Crump v. McKay, 53 N. C. 32, decided in 1860, before the adoption of the Code practice. In 1893, it was held that a husband could not recover for the slander of his wife unless he showed special damage to himself. This was under the Code practice. Harper V. Pinkston, 112 N. C. 293, 17 S. B. 161. In Strother v. R. R., 123 N. C. 197, 31 S. E. 386, it is held that the wife can sue alone for insults of- fered her, and that the husband is not required to be a party to the ac- tion and has no interest or share in the recovery. See 17 L. R. A. (N.' S.) 570, and note (does the husband's action abate at his death?); 20 lb. 215, and note (right of wife to sue for injury to herself); 9 lb. 1193, 19 lb. 633, and notes (right of husband to recover for injuries resulting in wife's death). See "Husband and Wife," Century Dig. §§ 767, 768; Decennial and Am. Dig. Key No. Series § 209. BANDFIBLD v. BANDFIBLD, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 757. 1898. Injuries to the Person of the Wife 'by the Husband. Remedy of the Wife. [Mrs. Bandfleld sued her husband for damages sustained by his com- municating to her a loathsome and incurable disease. The plaintiff had been abandoned by her husband and she had obtained a divorce from him before bringing this action. Defendant demurred. Demurrer sus- tained. Judgment against plaintiff, and she appealed. Affirmed.] Grant, C. J. The sole question is : Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife? We answered this question in the negative in the case of Wagner v. Carpenter, cir- Remedies — 33. 514 RELATIVE RIGHTS. [CJl. 6. cuit judge, decided November 17, 1897. In that case the husband had uttered a gross libel against his vs^ife. She brought suit by capias ad respondendum, and the proceedings were quashed by th? circuit judge, for the reason that the wife could not maintain the suit against her husband. The wife applied to this court for the wvit of mandamus to compel the circuit judge to vacate that order. The writ was denied, and the order of the circuit judge sustained. No opinion was written. But the sole and identical question there involved is the same as is involved in this suit. The briefs there filed pursued the same line of argument and cited the same au- thorities as are now cited. Counsel cite the married woman 's act of this state as conferring this right. This act is found in 2 How. Ann. St. §§ 6295, 6297, which read as follows: "The real and per- sonal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other man- ner, shall be and remain the estate and property of such female. . Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried. ' ' In many decisions the courts of many of the states, notwithstanding the statutes conferring rights upon a married woman over her separate property not conferred by the common law, have thus far, wittout exception, denied the right of a wife to sue her husband for personal wrongs committed during cover- ture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sus- tain such bold innovations. The rule is thus stated in 9 Bac. Abr. tit. "Statutes," I, p. 245: "In all doubtful matters, and when the expression is in general terms, statutes are to receive such a con- struction as may be agreeable to the rules of the common law in cases of that nature ; for statutes are not presumed to make any alteration of the common law, further or otherwise than the act ex- pressly declares. Therefore in all general matters the law pre- sumes the act did not intend to make any alteration; for, if the parliament had that design, they should have expressed it in the act." The result of plaintiff's contention would be another step to de- stroy the sacred relation of man and wife, and to open the door to law suits between them for every real and fancied wrong, — suits which the common law has refused on the ground of public policy. This court has gone no further than to support the wife, under the married woman's act, in protecting her in the management and control of her property. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband's affections against others than her husband. Berger v. Jacobs, 21 Mich. 215 ; Leonard v. Pope, 27 Mich. 145 ; Rice v. Rice, 104 Mich. 371, 62 N. W. 833. At the same time, it has held that the wife could not enter into a partnership or other business with See. 1 d.] RELATIVE RIGHTS. 515 her husband, and thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich. 146, 40 N. W. 907 ; Edwards v. McEnhill, 51 Mich. 160, 16 N. W. 322. Personal wrongs inflicted upon her give her the right to a decree of separation or divorce from her husband, and our statutes have given the court of chancery exclusive jurisdiction over that sub- ject. This court, clothed with the broad powers of equity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband's property as the circumstances of both will justify, and, in so doing, may take into account the cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am. & Eng. Enc. Law (2d ed.), 120; 2 How. Ann. St. § 6245. In the absence of an express statute, there is no right to maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sus- taining the rule : Abbott v. Abbott, 67 Me. 304 ; Preethy v. Free- thy, 42 Barb. 641; Peters v. Peters, 42 Iowa, 182; Schute v. Schultz, 89 N. Y. 644; Cooley, Torts (2d ed.), p. 268; Schouler, Dom. Eel. § 252; Newell, Defam. p. 366; Townsh. Sland. & L. (3d ed.), p. 548. Judgment affirmed. The other justices con- curred. For the rights of husband and wife to sue each other, before and after divorce, for personal injuries and other torts, at common law and under modern statutes, see note to the principal case in 40 L. R. A. 757, 6 lb. (N. S.) 191, 23 lb. (N. S.) 699, and notes. See also Abbott v. Abbott, 24 Am. Rep. 27; Rev. sec. 408; 21 Cyc. 1519; Phillips v. Barnet, Smith's Cases L. P. 385. For changes effected by modern statutes, see 6 L. R. A. 506, and note. See "Divorce," "Husband and Wife," Century Dig. §§ 812- 816, 748-755; Decennial and Am. Dig. Key No. Series, "Divorce," § 316; lb., "Husband and "Wife," § 205. FISCHLI V. FISCHLI, 1 Blaclcford, 360, 364, 1825. Remedy of Wife for Support. [The plaintiff, a divorced wife to whom alimony had been allowed, sued her husband in equity, praying that one-third of his land be set apart to her for life and for general relief. Defendant demurred. De- murrer sustained, and decree against the plaintiff, dismissing her bill. Plaintiff carried the case to the supreme court. Affirmed.] HoLMAN, J. . . . Taking the matter as it stood in England, we find no precedent, except in a few extreme cases, where any court has interfered in granting a maintenance to the wife, other than the court that granted the divorce. Most of the cases turn on the agreement of the parties, which will be carried into effect whether there has been a divorce or not. Vide, 1 Fonb. 97 ; 1 Mad- dock, 307; Head v. Head, 3 Atkyns, 547; Seeling v. Crawley. 2 Vernon, 386. It seems to be a general rule, that the granting of a maintenance to the wife out of the husband's property, is not an 516 RELATIVE RIGHTS. [Ch. 6. original, but an incidental matter. Such was the conclusion of Fonblanque, after reviewing most of the cases on the subject. See 1 Fonb. 97. Such was also the determination of Lord Chancellor Thurlow, in Ball v. Montgomery, 2 Ves. Jr. 195. His language is ; ' ' I take it now to be the established law, that no court, not even the ecclesiastical court, has any original jurisdiction to give a wife separate maintenance. It is always as incidental to some other matter that she becomes entitled to a separate provision. If she applies in this court upon a supplicavit for security of the peace against her husband, and it is necessary that she should live apart, as incidental to that the chancellor will allow her separate main- tenance ; so in the ecclesiastical court, if it is necessary for a di- vorce a mensa et thoro propter saevitiam. ' ' Similar to this is the authority given by our act of assembly. The making of a pro- vision for the wife, by the division of the property, is incidental to the divorce. The court that decrees the divorce, is to make the provision. And if that court fails to provide for the wife, by a division of the property, or makes an inequitable division, we know of no authority, either from the act of assembly, or tlie English books, for any other court to remedy the evil, or extend the pro- vision. The decree is affirmed, with costs. It is now held in many states that a wife may be allowed a main- tenance by a court of equity in a suit brought by her against her hus- band, although she is not seeking a divorce. That to grant her . relief where the husband wrongfully fails to support her, is within the powers of a court of equity independently of any statute, see Galland v. Galland, 38 Gal.. 265, Smith's Cases L. P. 431; Graves v. Graves, 14 Am. Rep. 525; Cram v. Cram, 116 N. C. at p. 293, 21 S. B. 197; 14 Cyc. 744. See Cram V. Cram, 116 N. C. 288, 21 S. E. 197, for similar relief in North Carolina upon construction of the statutes of that state, Revisal, sec. 1567, In Graves v. Graves, 36 Iowa, 310, 14 Am. Rep. 525, it is said: "The main question involved in this controversy is, whether a court of equity has the authority or jurisdiction to entertain an action brought for alimony alone, and to grant such alimony lehere no divorce or other relief is sought? It is true, beyond controversy, that the great weight and num- ber of the English authorities deny such jurisdiction. And it is, per- haps, also true that the number and possibly the preponderance of the American authorities are in accord with the English. But there are well-considered cases and authorities of great weight which affirm the jurisdiction. Judge Story says of these latter, that there is so much good sense and reason in the doctrine that it might be wished it were generally adopted. . . That a husband is bound, both in law and equity, for the support and maintenance of his wife is a proposition hitherto and now undisputed. If by his conduct he makes it unsafe, or by entertaining others there he makes It immoral for her to remain at his home, she may leave it and him and carry with her his credit for her maintenance elsewhere. So that, in such case, a victualler, a mer- chant, a dressmaker, a milliner, a shoemaker, a laundress, a physician, a lawyer, or any dealer in the necessaries of life may severally supply the wife with the articles needful and proper in her situation, and may respectively maintain their actions against the husband for their value. This remedy the law affords. But this involves multiplicity of suits; and, besides, the remedy is by no means adequate. The wife may find it difficult, if not impossible, to obtain a continuous support in this way, since such dealers and professional men would be unwilling to supply Sec. 1 d.} RELATIVE RIGHTS. 517 their articles or services, if thus compelled to resort to litigation in order to secure their pay. Here then is a plain legal duty of the hus- band for the violation of which no adequate remedy, even with a multi- plicity of suits, can he had, except in a court of equity. Upon the ground of avoiding a multiplicity of suits, or on the ground that no adequate remedy can be had at law, a court of equity may properly base its juris- diction in such eases. ... It seems to us, that upon well-settled equity principles, as well as upon considerations of public policy, the action may be maintained without asking a divorce or other relief." For alimony in divorce proceedings — when allowed, how enforced, when it ceases, effect of death of husband, remarriage of the parties, etc., see 2 L. R. A. (N. S.) 232; 3 lb. 192, 923; 4 lb. 909; 7 lb. 179; 9 lb. 593, 1070, 1168; 17 lb. 1140. See "Divorce," Century Dig. § 585; Decennial and Am. Dig. Key No. Series § 199. KYLES V. RAILROAD, 147 N. C. 394, 398-403, 61 S. E. 278. 1908. Wife's Remedy for Mutilation of Husband's Corpse. [Mrs. Kyles sued the defendant for damages claimed as the result of the careless and negligent conduct of the defendant whereby the corpse of her husband was mutilated; also for wantonly, wilfully, and recklessly mutilating, etc. Defendant demurred to the evidence. Demurrer sus- tained. Judgment against the plaintiff, and she appealed. Reversed. "The evidence indicated that the body was struck after death by dif- ferent trains going east and west, and that it and parts thereof were thrown hither and thither, backwards and forwards, by the passing trains going in opposite directions." There was also evidence of negli- gence on the part of the defendant's employees, none of whom were dis- charged in consequence, and this the court holds was, per se, "a ratifica- tion and it [the defendant] cannot be heard to say that the act was un- authorized. 12 A. & E. (2nd Ed.) 36 et seq."] Clark, C. J. . . . The nonsuit, it seems, was granted, not on the ground of lack of evidence to support the allegations of fact in the complaint, but on the ground that they did not constitute a cause of action. As this is the first time that such cause of action has been presented in the history of this court, it is proper to re- view somewhat the authorities elsewhere which sustain the prop- ositions that mutilation of a dead body entitles the surviving hus- band or wife (and, if none, the next of kin) to recover compensa- tory damages for the mental anguish caused thereby, and, in addi- tion, punitory damages if such conduct was wilful and wanton, or in recklessness of the rights of others. The right to the posses- sion of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife, or next of kin, and, when the widow was living with her husband at the time of his death, her right to the possession of the husband's body for such purpose is para- mount to the next of kin. Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 34 L. R. A. 85, 28 Am. St. Rep. 370. A widow has a right of action for the unlawful mutilation of the remains of her deceased husband. Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370; Foley v. Phelps (Sup.), 37 N. Y. Supp. 518 EELATIVE BIGHTS. [Ch. 6. 471. "While a dead body is not property in the strict sense of the common law, yet the right to bury a corpse and preserve its re- mains is a legal right, which the courts will recogni;4e and protect, and any violation of it will give rise to an action for damages. 8 A. & E. (2d ed.) 834, and cases cited; 13 Cyc. 280 and eases cited. "While the common law does not recognize dead bodies as property, the courts of America and other Christian and civilized coimtries hold that they are quasi property, and that any mutila- tion thereof is actionable. Larson v. Chase, supra. This is not an action for the negligent killing of the deceased, but an action by the widow (8 A. & E. [2d ed.] 838, and cases cited) for the wilful, unlawful, wanton, and negligent mutilation of his dead body. She was entitled to his remains in the condition found when life be- came extinct; and for any mutilation incident to the killing the defendant would not be liable, but is liable, in law, for any further mutilation thereof after death, if done either wilfully, recklessly, wantonly, unlawfully, or negligently. Larson v. Chase, supra; Foley V. Phelps, supra ; Railroad v. "Wilson, 123 Ga. 62, 51 S. E. 24; Lindh v. Railroad, 99 Minn. 408, 109 N. "W. 823, 7 L. R. A. (N. S.) 1018. Where the rights of one legally entitled to the cus- tody of a dead body are violated by mutilation of the body or otherwise, the party injured may in an action for damages recover for the mental suffering caused by the injury. Perley, Mortuary Law, 20 ; Renihan v. Wright, 125 Ind. 536, 25 N. E. 822, 9 L. R. A. 514, 21 Am. St. Rep. 249; Larson v. Chase, supra; Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R, A. 336, 27 Am. St. Rep. 850. In Larson v. Chase, 47 Minn. 311, 50 N. W. 239, 14 L. R. A. 85, 28 Am. St. Rep. 370, it is said, discussing this cause of action: "Where the wrongful act constitutes an infringement of a legal right, mental suffering may be recovered for, if it is the direct, proximate, and natural result of the wrongful act. It was early settled that substantial damages might be recovered in a class of torts where the only injury suffered is mental — as, for example, an assault without physical contact. So, too, in actions for false imprisonment, where the plaintiff was not touched by the defend- ant, substantial damages have been recovered, though physically the plaintiff did not suffer any actual detriment. In an action for seduction, substantial damages are allowed for mental sufferings, although there be no proof of actual pecuniary damages other than the nominal damages which the law presumes. The same is true in actions for breach of promise of marriage. Wherever the act com- plained of constitutes a violation of some legal right of the plain- tiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and nat- ural consequence of the wrongful act. That mental suffering and injury to the feelings would be the ordinary and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument." This case cites Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, where a father recovered damages for mental anguish in digging up and remov- Sec. 1 d.] RELATIVE RIGHTS. 519 ing the body of liis child. Chase v. Larson, supra, is quoted and followed by many cases, among them Foley v. Phelps (Sup.), 37 N. T. Supp. 471. "Where the injury inflicted upon the plaintiffs was an unlawful and unwarranted interference with the right of decent burial, and such conduct was wanton or malicious, or the result of gross negligence, or reckless disregard of the rights of others, exemplary damages may be awarded." Wright v. Holly- wood, 112 Ga. 884, 38 S. E. 94, 52 L. R. A. 621. This whole sub- ject is fully reviewed with full citation of authorities sustaining the right of action for compensatory damages for reckless indiffer- ence to the rights of others by Judge Dodge in the late case of Koerber v. Patek (1905), 123 Wis. 462-467, 102 N. W. 40, 68 L. R. A. 956. In Lombard v. Lennox, 155 Mass. 70, 28 N, E. 1125, 31 Am. St. Rep. 528, it is said: "If the ordinary and natural con- sequence of the tort is to cause an injury to the feelings of the plaintiff, and if the acts are done wilfully or with gross careless- ness of the rights of the plaintiff, damages may be recovered for mental sufferings." To same purport, 1 Sedg. Dam. (8th ed.) §§ 43-47; 1 Suth. Dam. § 95 et seq. The defendant also owed the plaintiff the duty to gather the body, and its fragments, and prepare the same for burial, and a negligent failure to do so was an infringement upon her legal rights, and therefore actionable. Commonwealth v. Susquehanna Coal Co., 5 Kulp, 195 (Pa. case, 1889) ; Scott v. Riley, 40 Leg. Int. 382 (Pa. case). Parts of the body were left along the track and gathered up by the father on the Monday following. Respect for the dead is an instinct that none may violate. The democracy of death is superior to tlie edicts of kings. Rizpah became forever- famous among her kind when she defied the king of Israel who would treat the bodies of her dead with contempt, and Sophocles has immortalized Antigone, who vindicated the like sentiment of human nature as a higher law than that of her sovereign. [The court then discussed the facts which constituted negligence.] The above facts, if sustained on the trial, will entitle the plain- tiff to recover damages for mental anguish for such indignities to the body of her husband, and punitive damages, also, if the jury find that such conduct was wilful and wanton, or in reckless in- difference to the rights and feelings «f the plaintiff and to their own duties. The jury should, however, be cautioned (as in actions for delay in delivery of telegrams concerning sickness and death") to carefully dissociate this from the plaintiff's grief at learning of the death of her husband, for this action does not concern that phase of the case. Nor is the plaintiff entitled to recover anything for grief at seeing the condition of the body in the coffin. She knew, or her friends should have told her of the condition of the remains, and she herself is to blame that she chose to look in upon them. It Jtnay have been a natural impulse, but the defendant is not responsible for the mental anguish resulting therefrom. The deceased may have moved in the humbler walks of life ; but to the plaintiff lie was husband and the father of her children. It was 520 RELATIVB EIGHTS. [Gh. 6. her right, old as time, as broad as humanity, and as deep as the heart of man, that his mortal remains should be treated with due respect. So far as the defendant through its agents recklessly, wilfully, or negligently failed to do this, it has violated her rights under the law. "What damages will compensate her for the mental anguish the defendant's conduct has caused her and what would be proper punitory damages for the recklessness, negligence, or in- difference of its agents (if proven) is a matter for a jury of her countrymen • to determine, subject to the supervision of a just judge, that an excessive sum be not assessed. The nonsuit is set aside, and a new trial ordered. Error. For the right to recover for the mutilation of the corpse of a child, wife, etc., see 6 L. R. A. (N. S.) 883; 16 To. 405, and notes, As to the measure of damages in such cases — when mental anguish is allowed and when not— see 114 N. W. 353, 19 L. R. A. (N. S.) 564, and 112 S. W. 897, 19 L. R. A. (N. S.) 575, which two cases are opposed on the mental an- guish question. The opinion here inserted is copied from 61 S. B. and differs a little, in the order of statement but not otherwise, from the opinion in the original report. See "Dead Bodies," Century Dig. § 13; Decennial and Am. Dig. Key No. Series § 9. Sec. 2. Parent and Child. (a) Habeas Corpus. STATE V. STIGAUL, and TURNLBY, 22 N. J. L. 286, 287-291. 1849. Rules governing Courts as to Custody, etc., when Child brought before them on Habeas Corpus. [The plaintiff, the father of certain children, prosecutes habeas corpus to obtain the custody of his children from his wife and her father. Two of the children, aged 3 years and 13 months, respectively, were left by, the court with the defendant. The other child, aged 5 years, was de- livered to the father. The case was commenced in the supreme court. The parents were separated but not divorced. Bach laid the blame for che separation on the other. The wife's father merely permitted his laughter and her children to live with him at his daughter's request.] Randolph, J. . . . The custody of children, as a general principle, belongs to one or both of the parents, yet, for their pro- tection and education, or for the preservation of their property, courts of equity, in the exercise of a sound discretion, will deprive both parents of the custody, and place them with third persons. 2 Story's Bq. § 1341, and the cases there referred to. When a child is brought up on habeas corpus, if of suiScient age and discretion, the court will only ascertain whether the child is under restraint, and if so will merely make an order setting him at liberty, to go where he chooses; and if it be necessary to give effect to that order, will send an officer to see that it is respected and observed. And the same rule applies when a wife, apprentice, or any other person who has arrived at years of discretion, is brought up on habeas corpus, the court usually refusing to make 8ec. 2 a.] relative rights. 521 other order, unless it is absolutely necessary. Rex v. Deleval, 3 Burr. 1434; Rex v. Clarksen, 1 Strange, 444; Rex v. Smith, 2 Stra. 982 ; Case of Woolstoncroft, 4 J. C. R. 80. But where the child is of tender years, and the father and mother have separated, or the wife has left the abode of her hus- band, it often becomes necessary for the court or judge, on the re- turn of the habeas corpus, to determine as to the custody of the child, without waiting for the slower action of the chancellor, or referring the matter to him, as the parens patriae, in the place of the sovereign. There are two classes of cases in the books, very distinctly marked in character and principle, especially in the English decisions ; the one is when the writ is brought up by the mother to remove the custody of the child from the father, or from his control, and the other is when the father sues out the writ to deprive the mother of the custody, and give it to the father. The general principle operating in both cases is, that the father, as head of the family, is entitled to the custody and control of his legitimate child, and may by will delegate that custody to a guard- ian. Case of Nickerson, 19 Wend. 16; Case of Chegay, 18 Wend. 637; 25 Wend. 72; 3 Hill, 400; 9 J. B. Moore, 279; 5 East, 221; 4 Ad. & El. 624 ; Story Eq. § 1341, a ; 1 Blk. Com. 453. But in the case of illegitimate children, the mother, and not the putative father, is entitled to the custody; and if deprived of it, the court will restore them to her. Rex v. Mosely, 10 Ves. 52, note a ; Rex V. Soper, 5 T. R. 278 ; 7 East, 579 ; 2 Inst. 375 ; 2 Mass. 109. Under the general rule of the common law, courts have not felt authorized to take the child from the father, and give it to the mother, although some very strong cases have arisen whieh seem to . demand the interference of the coart. Thus, in the case of De Manneville, 5 East, 221, the court refused to take a child eight months old from the father, and give it to the mother, on the alle- gation that he intended to take it out of the kingdom ; and even the chancellor, on application in the same case (10 Ves. 52), merely made an order restraining the father from removing the child from the kingdom, but refused to order it to be delivered to the mother, living separate from the husband. And in the case of Skinner, 9 Moore, 279, wherein the mother applied to have the child removed from the father, who was living in jail and cohabit- ing with a mistress, the court refused to make the order, referring the matter to chancery as the proper tribunal. To the same ef- fect is Ball v. Ball, 2 Sim. 35, and Wellesley v. The Duke of Beau- fort, 2 Russ. 9. This rule seemed so harsh and unsatisfactory that parliament was constrained to mitigate its rigor, and now, by 2 & 3 Vict. e. 54, s. 1, the chancellor or master of the rolls, upon petition of the mother of any infant in the custody of the father, or other person under his authority, may make order for the ac- cess of the petitioner, or, if the infant be within the age of seven years, for the delivery of such infant to the mother, until he at- tains such age, under convenient regulations. Harr. Dig. 3379, Tit. Infant, 4. But when the father had asked a court of law or a judge to grant an order to reinvest him with the actual custody of 522 RELATIVE EIGHTS. [Vh. 6. his child, the court, before making such order, would look into the case, and notwithstanding the presumed right of the father, would exercise a discretion in the matter : such ever was and still is the law, with much less change in the rule than in the mode of exer- cising the discretion, or the extent of its exercise. The principle of the action of the court, or refusal to act, is this : the power and right of the father is allowed for the benefit of the child, and not to enable him to govern with arbitrary caprice or tyrannical con- trol, so as to subvert the very object of the law in giving him the authority. Thus, when the children would be exposed to cruelty or gross corruption, immoral principles or habits, or the father is not of ability to provide for the support, education, and future prospects of the child, and the mother or person with whom the child resides is able, the court will make no order granting the cus- tody of the child to the father. And, too, if the child is of tender years, and especially if a female or of sickly constitution, in the- custody of the mother, against whom there is no charge but inabil- ity to live with her husband, the court would make no order of re- moval. The discretion is pretty broad, and perhaps extending with the improvements and refinements of the age, yet it is not arbi- trary, but based on sound principles, and, like all other discretion- ary proceedings, will take its hue from the officer exercising it. In Rex V. Greenhill, 4 Ad. & El. 624, the father left his home and fam- ily, and was cohabiting with a mistress ; then tbe mother left and took with her her three young children. The husband was other- wise of good cliaracter. and had large property, the mother none. He offered to abandon his mistress and be reconciled to his wife, or to take the childreii to his mansion, to be educated under the super- vision of his mother, and away from any immoral influence. Ths wife refused, and the court made the order of removal, on the ground that it would be for the benefit of the children, and there being nothing of cruelty or corruption about the father or his home, the law gave him the custody. But in Rex v. Dobbins, and in Rex v. Wilson, in the same book, pp. 664, 665, note, where the conduct of the father at his home came within the discretionary exceptions, the court refused to take the child from the mother. In the matter of Waldron, 13 Johns. 149, where the father was poor, and his wife went home to her father, who was of large estate, when she was delivered of a child and died, leaving the child the heir apparent to his grandfather, and when it was still of tender age, the father applied for his custody ; but the court refused it, on account of the inability of the father and the great benefit of the child, and that the special powers of the court of chancery in the case invoked would be sufficient to correct any evil. In the case of Nickerson, 19 Johns. 16, the court say the father is the natural guardian, and entitled to the custody of the child, if there be no danger of ill usage or he be not of grossly immoral principles or habits, or unable to provide for him. In the De Hautville case, the child was but twenty-one months old, very sickly, and, in the opinion of physicians, not of an age to be separated from his Sec. 2 a.] eelativb rights. 52S mother ; and, on these grounds the court rightfully refused to re- move the child from the mother and place him with the father. The case derives interest from the station of the parties, the ex- tended and exciting evidence in relation to the history of the mar- riage and separation of the parents, as well as from the great abil- ity and learned investigation of both counsel and court, yet in its simple details is of no extraordinary character, and though dif- fering in result from Rex v. Greenhill, yet it comes within the principles and scope of the exceptions stated by the court in that ease ; the real difference is in the mode and extent of the discretion. In the English ease the court, in a very strong ease, exercised their discretion, and removed the child because they considered the ex- ercise within the rule and for the benefit of the child : in the Amer- ican case the court, in not a very strong case, refused its exercise, for pretty much the same reasons. In the case of Barry v. Mer- cein, to be found in 25 Wend. 72, 3 Hill, 401, and 8 Paige, 47, the same difficulty occurs as to the mode of exercising the discretion, but upon the general principles of law there is no great diversity among the several jurists who examined the matter, and these principles will generally be found to accord with what has been before stated. In Grey's case, 6 Law Jour. 529, the child was of tender years and feeble health, and was left with the mother, though living apart from the husband. So in the present case, the two younger children, one of thirteen months and the other of about tliree years, are too young to be removed, for any practical or useful purpose to themselves at least, and as nothing is proved against the mother but her inability to live with her-husband, they should for the present remain with her; but an order may be en- tered to deliver the eldest child to his father. In Tillman v. Tillman, — S. C. — , 66 S. E. 1049, where the mother asked for the custody of her children, who, without her consent, had been committed to their grandparents by the father, by a deed executed ac- cording to the provisions of a statute, Woods, J., gives a very clear ex- position of the law in regard to the respective rights of the father and the mother to the control and custody of their children; the effect of the disposition of such custody by the deed of the father; and the constitu- tionality of such statutes, as affecting the rights of the mother, the lib- erty of the children, and the power of the courts to control the custody of the children. Upon reading this opinion one is impressed with the idea that "while much else may be said on the subject, nothing more can be safd." That a father may regain the custody of his infant children by habeas corpus, notwithstanding the fact that the respondent holds them under the deed of the father, see Musgrove v. Kornegay, 52 N. C. 71; so it is with the mother of a bastard — she may retake the child though she has made a deed transferring it to another, In re Lewis, 88 N. C. 31; a bas- tard cannot be taken from the mother by the putative father, Wright v. Wright, 2 Mass. 109. While 12 Car. 2, permits a father to appoint a guardian for his infant children, yet such appointment, whether by deed or will, takes effect only after the father's death. Tillman v. Tillman, supra. See further as to the custody of infants, Harris v. Harris, 115 N. C. 587, 20 S. E. 187; Latham v. Ellis, 116 N. C. 30, 20 S. E. 1012; 15 Am. & Eng. Enc. Law, 182, 183, 185, 187; 21 lb. 1036, 1037; 29 Cyc. 1586 et sea. The federal courts do not issue writs of habeas corpus in con- 524 RELATIVE EIGHTS. [Ch. 6. troversies over the custody of children. In re Burrus, 136 U. S. 586, 10 Sup. Ct. 850. For appeals in habeas corpus proceedings for the custody of children, see ch. 5, sec. 8, (a), note. For the effect of the marriage of an infant upon parental control, see Wilkinson v. Dellinger, 126 N. C. 462, 35 S. B. 819; State v. Lowell, 80 N. W.. 877, 46 L. R. A. 440; White V. Henry, 24 Me. 531, Smith's Cases on L. P., 69; Aldrecht v. Bennett, 63 N. H. 415, Smith's Cases, 71; Com. v. Graham, 157 Mass. 73, 31 N. E. 706, Smith's Cases, 72, 16 L. R. A. 578, inserted at ch. 6, sec. 2, (c), post; Schouler, Dom. Rel. 370. The law seems to be settled, that marriage emancipates an infant daughter. Some authorities hold that it does not emancipate an infant son; some hold that it does; and still others hold that, while it does not completely emancipate him, still the infant must be allowed to support his wife and children from his earnings before the parent can appropriate such earnings. For the rights of a testamentary guardian to the custody of his wards, see In re Young, 120 N. C. 151, 26 S. E. 693. Death of the respondent abates the proceedings in habeas corpus for the custody of children. Brown v. Rainor, 108 N. C. 204, 12 S. E. 1028. For the jurisdiction of the courts of a state in which the child is temporarily sojourning, see 10 Ij. R. A. (N. S.) 690, and note. For who may sue out habeas corpus for the custody of an infant or on its behalf, see 9 L. R. A. (N. S.) 1173. For the constitutionality of stat- utes regulating the custody of infants for their well-being — committing them to training schools, etc.; and for the effect of such statutes on the child's constitutional liberty and the parent's right of custody, control, etc, see 18 L. R. A. (N. S.) 886, and note. See "Habeas Corpus," Cen- tury Dig. § 84; Decennial and Am. Dig. Key No. Series § 99; "Parent and Child," Cetnury Dig. §§ 4-32. (b) Enticing and Harboring Children. BUTTERFIELD v. ASHLEY et al., 6 Cushing (Mass.), 249. 1850. What Constitutes Enticing, etc. Remedy. Form of Action. Gist of the Action. [Trespass on the case for enticing plaintiff's son from his employment. Judgment against defendant, and he appealed. Reversed. The plaintiff sues for the alleged enticing of his son, who was a minor and the servant of the plaintiff. The proof was that there was no en- ticing but that the son left his father and applied to defendants for employment. The defendants at first refused to employ him but after- wards did so upon his statement that his father was anxious that they should do so. This statement was untrue. The judge charged that plaintiff could recover upon these facts, notwithstanding the bona fides of the defendants in their belief that the son's statement was true.] Metcalf, J. . .A master may maintain an action on the case against one who, knowing that another is his servant, entices him away from his service, or retains and einploys him after he has left that service without being enticed away; and also against one who continues to employ his servant, after notice that he is such, though the defendant, at the time of retaining or employing him, did not know him to be a servant ; and a father is the master of his minor child, within these rules of law. The books of entries contain forms of declarations adapted to these three distinct causes of action. And a plaintiff generally inserts at least two counts Sec. 2 t.] RELATIVE RIGHTS. 525 in his declaration ; one for enticing, and another for employing or harboring; so that he may succeed on the latter, though he may fail to support the former. But in either form of declaring, it is a material and necessary allegation, that the defendant knew, at the time of the enticing, employing, or harboring, that the party enticed away, employed, or harbored, was the servant of the plain- tiff ; or that he afterwards had notice thereof, and continued to em- ploy or harbor the servant after such notice. Aiid such Imowledge or notice must he proved in order to sustain the action. See 8 Wentw. PL 438; 2 Chit. PI. (6 Am. ed.) 645, 646; 1 Blk. Com. 429 ; 3 lb. 142 ; Fawcet v. Beavres, 2 Lev. 63 ; Blake v. Lanyon, 6 T. R. 221 ; Reeves Dom. Rel. 291 ; Sherwood v. Hall, 3 Sumner. 127, Fed. Cas. No. 12,777; Ferguson v. Tucker, 2 Har. & Gil. 182; Conant v. Raymond, 2 Aik. 243 ; Fores v. Wilson, Peake's Cas. 55. The gist of an action like that now before us is, says Lord Mans- field, "that the defendant has enticed away a man who stood in the relation of servant to the plaintiff." Hart v. Aldridge, Cowp. 54, 56. And the enticing must be proved. 3 Stark. Ev. 1310; Stuart V. Simpson, 1 Wend. 376. Now what is meant by "enticing away from the service" of another? So far as we know, the word ' ' entice ' ' has no technical meaning. But, in a declaration like that in this case, it must mean something quite different from a reluc- tant emplo5Tnent of another's servant, luider a belief that the mas- ter has consented to that employment. The word is ofen joined, in the precedents of forms, with the words "solicit, seduce, per- suade, and procure;" and it evidently imports an active and wrongful effort to detach a servant from his master's service, by offering inducements adapted to that end. In Keane v. Boycott. 2 H. Bl. 511, Eyre, C. J., describes enticement anfl its effects as a dissolution of the relation of master and servant "officiously." We see no evidence of enticement in the present ease. The son had wrongfully left his father's service, before he was employed by the defendants; so that the plaintiff's declaration is not sustained by the proof. If evidence of the mere employment of another's servant, knowing him to be such, would support a declaration for enticing him from his master, there would be no necessity for a count which omits the allegation of enticement, and charges only a retaining, employing or harboring. Besides, if, in the opinion of the jury, the defendants believed that the plaintiff had fully consented to their employing his son, then the material averment in the declaration, that they well knew that he was in plaintiff's service, was not proved, but was disproved. For it is impossible that they should know him to be in the service of one whom they believed to have dispensed with his services. New trial ordered. See notes to next case, post. See "Parent and Child," Century Dig. §§ 182-188; Decennial and Am. rvig. Key No. Series § 18. 526 RELATIVE EIGHTS. [Gh. 6. MAGEE V. HOLLAND, 27 N. J. L. 86, 93-95. 1858. Adduction. History, etc., of the Remedy for. Essentials to Recovery. [Action on the case for the forcible, malicious, and wrongful seizing and carrying away the three infant children and servants of the plain- tiff. Verdict against the defendant. Motion by defendant for a new trial, which motion was transferred to the supreme court for its advisory opinion. Motion refused. Only a part of the opinion is here inserted. The defendant was the brother-in-law of the plaintiff. The plaintiff's wife left him and the children; and afterwards she and the defendant forcibly seized the children and carried them out of the state.] Elmer, J. Before the aljolition of the tenure in chivalry, it was held, as a doctrine of the common law, that the abduction of his heir, was an injury for which the father might maintain an action and recover, by way of damages, the value of his right of marriage. Reeves, in his \\ork on Domestic Relations, 293, suggests that, in- asmuch as all the children are heirs in this country, the action may be sustained for taking a^^•ay any of them. But the damages for the abduction of the heir were restricted to the value of the mar- riage ; and the father being no longer entitled to any such value, the taking away and marrying his heir does him no injury for which a civil action will lie upon that principle. 5 Coke, 108 ; 9 Coke, 113; 10 Coke, 130; Cro. Eliz. 55, 849. In the case of Bar- ham V. Dennis, Cro. Eliz. 770, the declaration was in trespass, by a father for taking and imprisoning his daughter, without alleg- ing her to be his heir or any loss of service, and damages were as- sessed for the taking and imprisoning separately. Three of the judges were of the opinion that the action could not be sustained. Glanville held that "the father hath an interest in every one of bis children, to educate them and provide for them, and he hath his comfort by them ; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it. ' ' The case was there- upon adjourned, and was afterwards settled by arbitrament. 3 Blk. Com. 141, gives the weight of his authority to the opinion of Grlanville, and I think it is to be regretted that this reasonable doctrine did not prevail. There does not seem, however, to have been any case in England or America, where a father has recov- ered damages for the abduction of his children, the uniform lan- guage of the cases being that he can only sustain his action where there has been actually or constructively a loss of service. In the case of Hall v. Hollander. 4 Bar. & Cress. 660, the court of king's bench, in England, sustained the ruling of the majority of the judges in Barham v. Dennis as clearly law. And subsequently, in the case of Grinnell v, Wells, 7 Man. & G. 1033, the court of com- mon pleas held the same doctrine. The case of Hall v. Hollander bas been somewhat questioned in some of the American cases, but the general doctrine has been substantially adhered to. . . Much stress has been laid, by the counsel for the defendant, on the fact that he acted in aid of and in conjunction with his sister, Sec. 2 C] RELATIVE RIGHTS. 527 the mother of the children. This circumstance was submitted to the jury, as entitled to be considered in mitigation of damages. Further than this it could not go. The right of the father was clearly paramount to that of the mother ; and there was no reason to doubt that the defendant purposely aided in taking the children against the father's consent. Although in cases where a child is before the court by virtue of a habeas corpus they will exercise a discretion, and permit the child, if of tender years, to remain un- der the care of the mother; yet, if it is actually in the custody of the father, so absolute is his right considered, that they will not interfere to remove it, and it is strongly doubted whether they have the power to do it. State v. Stigall, 2 Zab. 286; Hackwell's case, 22 E. L. & E. R. 395. . . New trial refused. In the principal case it is held that punitive damages were properly- allowed. It is also held that loss of services must be proven, though such loss may be inferred when the children are minors and residing with the father. For the measure of actual damages, as distinguished from punitive damages, in such cases, see the principal case and also Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593; which last case holds also that one who stands in loco parentis may maintain an action for abduction, and that the action rests upon the right of the plaintiff to the services of the child and not upon actual services. To entice a child' from its parents was not a crime at common law; but to abduct or entice a child under fourteen years of age is made a crime in North Carolina. Revisal, sec. 3358; State v. Rice, 76 N. C. 194. To atduct is to take and carry away a child, either by fraud, persuasion, or open violence. State v. George, 93 N. C. 567. To kidnap a child is also made criminal in North Carolina, Revisal, sec. 3634. To kidnap is to forcibly abduct or steal away a man, woman, or child from their own country and send them, into another, according to Blackstone; though, under modern statutes, the term is used very much in the same sense as to abduct — and the taking from one country or state to another is not always an essential ingredient. 2 Bouv. L. D. 91; 24 Cyc. 797. The mere employment of a minor is neither enticing nor kidnapping; and where there is no enticing there is no wrong to be remedied. State v. Chisenhall, 106 N. C. 676, 11 S. B. 518; Williams v. Railroad, 121 N. C. 512, 28 S. E. 367, 1 L. R. A. (N. S.) 205, and note (what constitutes enticing), 2 lb. 362, and note (right of mother to sue while the father is living). See "Parent and Child," Century Dig. §§ 182-186; Decennial and Am. Dig. Key No. Series § 18. (c) Seduction. BRIGGS V. EVANS, 27 N. C. 16. 1844. Form of Action. Father's Right to Recover. Basis of the Action. Fig- ment of the Law. Basis of Damages. Adult and Minor Daughter. r Action on the case for seduction of plaintiff's daughter. Verdict and judgment against the defendant, and he appealed. Affirmed. - The defendant seduced the plaintiff's daughter two months before she was of age and while she was living with her father as a member of his family. The daughter was delivered of a child in due course of gesta- tion. She went to live with her grandmother before the birth of the 528 RELATIVE RIGHTS. [Ch. 6. child, but after the birth she returned to her father's. She became of age in November, 1841, and this action was commenced in March, 1842. There was no contract of hiring between the father and daughter, but she lived as one of the family and performed various domestic duties for him.] Nash, J. Three objections were urged before the superior court. The first, because the action ought to have been trespass and not case ; the second, because the action could not be sus- tained before the birth of the child ; and third, because the action could not be sustained without proof of an actual contract for services after the daughter came of age. These objections were overruled by the presiding judge, and we think very properly. It is unnecessary to point out the distinguishing marks between the actions of trespass and case, and the necessity, in ordinary cases, of adopting the form of action appropriate to the cause of complaint. It is admitted by the text writers, and decided in many cases, that the plaintiff, in an action for seduction, may adopt either form at his option. He may either bring trespass for the direct injury, laying it with a per quod servitium amisit, or in case for the consequential damage. 3 Stephens, N. P. 2351, 2354. That trespass may be brought, is shown by the cases of Woodward v. Walton, 2 N. R. 476 ; TuUedge v. Wade, 3 Wilson, 18; and that ease may, by Dean v. Peel, 3 Bast, 43; Heavitt v. Prime, 21 Wend. 79 ; Martin v. Payne, 9 Johns. 387 ; Speight v. Olivera, 3 Stark. 435, by Abbott, C. J.; HoUoway v. Abell 32 E. C. L. E. 615, and by many other cases. In Chamberlain v. Hazelwood. 7 Dow. Prac. cases, cited in 3 vol. of Stephens, N. P. 2353, Mr. Earon Parker declares that, although there may have been no direct adjudication on the subject, it had been the con- stant practice with pleaders to declare in either way. These au- thorities abundantly show that the action was properly brought in case. The second exception is equally as untenable as the first. It assumes that the only consequential injury to the father, of which he has a right to complain, consists in the loss of the services of his daughter and the expenses he may incur during her confinement. This certainly is not so. If it were so, and pregnancy did not re- sult from the seduction, the father would have no action. All the authorities show that the relation of master and servant between the parent and the child is but a figment of the law, to open to him the door for the redress of his injury. It is the substratum on which the action is built. The actual damage which he has sus- tained, in many, if not in most cases, exists only in the humanity of the law, which seeks to vindicate his outraged feelings. He comes into court as a -master — he goes before the jury as a father. He must, indeed, show that his child stood to him in the relation of a servant: but it matters not how trivial the services she ren- dered — though it may have consisted but in pouring out his tea — he is entitled to his action. Carr v. Clark, 2 Chit. 261; Mann v. Barrett, 6 Esp. 23. So it has been decided that the father need Sec. 2 C] RELATIVE BIGHTS. 529 not shoAV any actual service rendered, if at the time of the seduc- tion she lived with her father or was under his control. Maunder V. Nun, ]M. & M. 323, cited 3 Stephens, N. P. ; Mann v. Barrett, and Holloway v. Abell. Upon this objection, however, there is an ex- press authority, that the father can maintain the action before the confinement of his daughter, even though he has turned her out of doors, per Lord Denman in Joseph v. Cowen, cited 2 Step. N. P. 2354, and Roseoe on Bv. 483. Both upon authority and rea- son then, this objection cannot be sustained. So neither can the third. In no case is an actual contract be- tween the father and the daughter necessary to maintain the ac- tion. Before the child attains the age of twenty-one years, the law gives the father dominion over her, and, after, the law presumes the contract, when the daughter is so situated as to render services to the father, or is under his control ; and this it does for the wisest and most benevolent of purposes, to preserve his domestic peace, by guarding from the spoiler the purity and innocence of his child. If this were not so, in those cases where the degradation would carry the largest portion of anguish and distress, the un- fortunate parent would be without redress, if his daughter were over twenty-one years of age. That the law is not as the defendant contends, is shown by many of the cases cited upon the other points. To these may be added, Bennett v. Alcot, 2 T. R. 166; Nicholson v. Stryker, 10 Johns. 115 ; Morgan v. Dawes, 4 Cow. 417. In this case the daughter lived in her father 's house at the time of the seduction, under his control and in the performance of actual services. Here this opinion might be closed, but for another part of the charge. The presiding judge told the jury that, before the daugh- ter became of age, the action might be sustained in his paternal character for the loss of her services, and after she came of age, it might be sustained by him as master, for services lost. The dis- tinction is new to us. We have been able to find no case in which it is recognized. On the contrary, the whole history of the action clearly shows that it rests upon the assumed or actual relation of master and servant, and that, as well before the daughter has at- tained twenty-one as after. We notice this part of the charge, not because it at all enters into the decision of this case, as presented to us by the parties, but because we are not willing it should be sup- posed we acquiesce in its correctness. The defendant did not ex- cept to it, and in the ease of King v. Ring, 20 N. C. 301, the court say, "the rule of this court is, to regard, as nearly as we can, the case made by the judge in the light of a bill of exception for speci- fied errors," and none others are considered here, unless they ap- pear upon the record strictly so called. The only way in which it could have been important in this case was, as it might have af- fected the damages; and the defendant's not excepting is strong evidence that it did not affect him injuriously. We see no error in the opinion of the presiding judge in the points excepted to. Judgment affirmed. Remedies — 34. 530 RELATIVE RIGHTS. [C/l. 6. Whether the action should be trespass vi et armis or trespass on the case for seduction of a daughter or servant, was one on which there was great conflict of authority. See M'Clure's Bxtrs. v. Miller, 11 N. C. 133. and note at p. 138. For a very full discussion of this question, see also 25 Am. & Eng. Enc. L. 201. That punitive damages may be recovered by the father, see Scarlett v. Norwood, 115 N. C. 284, 20 S. E. 459; Snider v. Newell, 132 N. C. at p. 624 — that either trespass or case will lie, is approved in this case at p. 615, 44 S. E. 354. See "Seduction," Century Dig- §§ 9-16, 25; Decennial and Am. Dig. Key No. Series §§ 7, 8, 12. IRWIN V. DEARMAN, 11 East, 23. 1809. Action by One in Loco Parentis. Damages. [Action on the case for seduction of plaintiff's adopted daughter. Ver- dict against defendant, who moved for a new trial. Motion denied. The girl seduced was a daughter of a deceased fellow-soldier of the, plaintiff. Plaintiff adopted her as his own child, and at the time of the seduction she lived with him and performed household services for him. The only damage proven was the loss of the girl's services for five weeks and the expenses of her confinement, which plaintiff paid. Ver- dict was for one hundred pounds.] Lord Bllenborough, C. J. This has always been considered as an action sui generis, where a person standing in the relation of a parent, or in loco parentis, is permitted to recover damages for an injury of this nature ultra the mere loss of service. But even in the case of an actual parent, the loss of service is the legal founda- tion of the action. And however difficult it may be to reconcile to principle the giving of greater damages on the other ground, the practice is become inveterate and cannot now be shaken. And having been considered, in the case of Bdmondson v. Maehell, to extend to an aunt, as one standing in loco parentis, I think that this plaintiff, who had adopted and bred up the daughter of a friend and comrade from her infancy, seems to be equally entitled to maintain the action, on account of the loss of service to him. aggravated by the injury done to the object on whom he had thus placed his affection. See also as to the action by one who stands in loco parentis, Kinney v. Laughenour, 89 N. C. 365, which holds that while a stepfather, or any other person who stands in loco parentis, may recover for seduction; still, the girl must be living in his family, or be absent temporarily with his consent, and under his control, or no recovery can be had. It the girl be seduced while in the service of a third person, the stepfather, etc., cannot maintain an action for seduction, although she returns to his house and is there delivered of a child as the result of the seduction, and is there cared for during her confinement. Ibid., citing 5 Walt's Act. & Def. 660, 661; Wood's Mast. & Serv. sec. 245. The case also ap- proves Briggs V. Evans, 27 N. C. 16, Inserted supra. See "Seduction," Century Dig. § 46; Decennial and Am. Dig. Key No. Series § 20. Sec. 2 C] RELATIVE EIGHTS. 531 SNIDER ^. NEWELL, 132 N. C. 614, 44 S. E. 354. 1903. Fvll Review of the Law of Seduction; Who Can Maintain an Action for; 'Necessary Allegations of the Complaint; Figment and Quaint Fic- tions of the Law; Services. Mental Anguish. [Action by the father for the seduction of his infant daughter while she lived with him. Defendant demurred to the evidence. Demurrer sustained. Judgment of nonsuit against plaintiff, and he appealed. Re- versed. The judge held that, while plaintiff had proven the seduction and con- sequent mortification suffered by him, there was no proof that he had lost any portion of the services of his daughter by reason of the defend- ant's having seduced her. The facts appear in the beginning of the opinion.] Connor, J. This is an action prosecuted by the plaintiff for the recovery of damages alleged to have been sustained by reason of the seduction by the defendant of his daughter, whereby he ' ' lost the services of his said daughter, and the reputation of his family was thereby greatly injured, and he suffered great mental anguish and humiliation. " The defendant admitted that he had illicit car- nal intercourse with the daughter, but denied that the plaintiff lost her services thereby, or suffered otherwise. The plaintiff in- troduced evidence tending to show that his daughter, when about eighteen years of age, was seduced and debauched by the defend- ant; that he had repeated acts of sexual intercourse with her in the plaintiff's house, in which his daughter resided as one of his family ; that such intercourse was had at night, the defendant go- ing to the room of the daughter, entering through her bedroom window; that the plaintiff knew nothing of the defendant's con- duct until it- had continued about a year, when he charged the de- fendant with it, when he admitted the truth of the charge. The plaintiff testified that he was greatly shocked; that the matter greatly pressed on his mind, and he thought they were all dis- graoecl : that the daughter was prior to the sexual intercourse with the defendant, chaste, pure, and virtuous; that defendant is a married man. The defendant introduced no testimony, but moved the court to dismiss the action as upon a nonsuit. The court al- lowed the motion, the plaintiff excepted and appealed. The judgment of his honor is based upon the conclusion of law that the plaintiff had not shown any loss of service, or any diminution of the daughter 's capacity to serve him, and could not, for the other injuries alleged, maintain the action. The demur- rer to the evidence admits the truth of the plaintiff's testimony, to- gether with every reasonable inference to be drawn therefrom most favorable to the plaintiff, but presents the question whether the plaintiff's testimony is sufficient to base a finding of such loss of service as is necessary to maintain the action. The plaintiff has alleged a loss of service, mental anguish, and mortification. We have been unable to find, after a very careful and diligent search, a case in England or America in which the declaration or com- 532 RELATIVE BIGHTS. [Gil. 6: plaint has failed to allege loss of service. The action at common law was trespass vi et armis, or trespass on the case per quod servi- tium amisit. Briggs v. Evans, 27 N. C. 16. The gravamen of the action was that the daughter was the servant of the plaintiff, and that by her seduction he lost her services. Taylor, C. J., in Mc- Clure's Executors v. Miller, 11 N. C. 133, says: "It is character- ized by a sensible writer as one of the 'quaintest fictions' in the world that satisfaction can only be come at by the father's bring- ing the action against the seducer for the loss of his daughter's services during her pregnancy and nurturing." In Kinney v. Laughehour, 89 N. C. 365, it is said: "The action for seduction does not grow out of the relation of parent and child, but that of master and servant and the loss of services. It is true that this is a fiction of the law." In Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397, Clark, J., said arguendo: "It is true that at common law an action for seduction could technically only be brought by a father, master, or employer, and that damages were alleged per quod servitium amisit for value of services lost. This though in fact no services were lost, and even when a woman was of full age. and the father was not entitled to recover services of any one else. It was well understood that this was a mere fiction, and damages were awarded for wrong and injury done her." The question de- cided in that case does not arise upon this record. In Scarlett v. Norwood, 115 N. C. 284, 20 S. B. 459, there was an allegation of loss of service, seduction, etc., "thereby damaging said plaintiff, and for medical care, nursing, tendance," etc. The action was brought by the father. In Abbott v. Hancock, 123 N. C. 99, 31 S. E. 268, the plaintiff alleged that her daughter was in her actual service, residing with her in New Berne, and being under twenty- one years old, and unmarried. In Willeford v. Bailey (at this term), 43 S. E. 928, there was an allegation of loss of service, ab- duction, etc., the action being brought by the father, the girl being under twenty-one years of age. Nash, J., in Briggs v. Evans, supra, says : "It is but a figment of the law to open the door for the redress of his injury. It is the substratum on Avhich the action is built. . . He comes into court as a master ; he goes be- fore the jury as a father." The case of Anthony v. Norton, 60 Kan. 341 , 56 Pac. 529, 44 L. R. A. 757, 72 Am. St. Rep. 360, un- mistakably holds that "the action could be maintained on the bare relation of parent and child alone." . We are not called upon to say more than that courts should move forward, and yet cautiously, in dispensing with even "fic- tions. ' ' We must bear in mind that the law- of procedure as well as substantive law is not a thing to be manufactured, but is the result of growth and careful conservative progress. While we find no difficulty in holding that "it is not necessary, in order for a parent to maintain an action for the seduction of his daughter, that he prove actual services or the loss thereof," it is sufficient that it be shown that the child is a daughter of the person suing. Sec. 2 C] RELATIVE RIGHTS; 533 and residing in his family as such, or is elsewhere with his consent and approval. Rogers on Domestic Relations, § 839. We care- fully refrain from advancing further than is necessary in this ease. It would not require any considerable foresight to see a large yielding of suits for seduction brought by collateral rela- tions upon the suggestion of loss sustained in social position, busi- ness relations, mortified sensibilities, etc. We have a striking illustration of this in Young v. Tel. Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883, in which it was held that a husband, to whom a message had been sent notifying him of the sickness of his wife, could, in an action for failure to deliver promptly, recover, in addition to nominal damages, compensation for mental anguish. Since the decision of that case, we have suits for "compensation for mental anguish" brought by persons of al- most every kind and degree of kinship, and we have good reason for thinking that ' ' the end doth not yet appear. " It is undoubt- edly true that, as we come into a clearer view of social, domestic, and business relations, with their resulting rights and duties, the courts will guard these relations, and protect them by appropriate remedies, both preventive and remedial. In doing so, the princi- ples underlying our jurisprudence must not be violated, or senti- mental emotions be made cause of actions; nor must we permit the tenderest and most sacred relations of life to become sources of profit and speculation. In the view which we take of this case, the plaintiff was entitled to maintain his action upon his allega- tion and proof. We find abundant authority, both in and beyond this state, to sustain this conclusion. In McDaniel v. Edwards, 29 N. C. 408, 47 Am. Dec. 331, RufiSn, C. J., says: "When the daughter is living with the father, whether within age or of full age, she is deemed to be his servant, for the purposes of this ac- tion, in the former case absolutely, and in the latter if she render the smallest assistance in the family — as pouring out tea, milking, and the like. " In Kennedy v. Shea, 110 Mass. 150, Ames, J., said : "According to numerous decisions of the courts of New York, Pennsylvania, and some other states of the Union, this relation is sufficiently proved by the evidence that the davighter was a minor, and that her father had the right to her services. ' ' In Bartley v. Richtmyer, 4 N. Y. 38, 53 Am. Dec. 338, Branson, C. J., says: "Since it has been settled that the value of the services actually lost does not constitute the measure of damages when the action is brought by the father, it has been held sufficient for him to show that the daughter was under age, and lived in his family, at the time of her seduction, without proving that she had been accustomed to render service. It has been thought enough that the father was entitled to her services, and might have required them if he had chosen to do so." See, also, notes to this case, 53 Am. Dec. 338. In Martin v. Payne, 9 Johns. 387, 6 Am. Dec. 288, Spencer, J., says: "She was his servant de jure, though not de facto, at the time of the injury: and, being his servant de jure, 53-4 RELATIVE EIGHTS. [Ch. 6. the defendant has done an act which has deprived the father of his daughter's services, and which he might have exacted but for that injury." Coon v. Moffet, 3 N. J. Law, 583, 4 Am. Dec. 392. The English cases are equally as clear upon this point. In Fores v. "Wilson, Peake, N. P. Cases, 55, Lord Kenyon held "that there must subsist some relation of master and servant ; yet a very slight relation was sufficient, as it had been determined when daughters of the highest and most opulent families have been se- duced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant." In Maunder v. Venn, 1 Moody & M. 323 (22 Com. Law Rep.), it is held that it is not necessary to show any acts of service done by the daughter. It is enough that she lives in the father's family under such cir- cumstances that he has a right to her services. This ease is singu- larly like the case before us. It is said in the course of the plain- tiff's proof, a difficulty occurred in making out any acts of serv- ice of the daughter. It being, however, proved that the seduction took place while she was residing with the plaintiff, and forming a part of his family, Littlcdale, J., interposed, and said that: "The proof of any acts of service was unnecessary. It was sufficient that she was living with her father, forming part of his family, and liable to his control and demand. The right to the service is sufficient. ' ' Judge Cooley thus sums up the law : ' ' The father su- ing for this injury in the ease of a daughter, actually at the time being a member of his household, is entitled to recover in his ca- pacity of actual master for a loss of service consequent upon any diminished ability in the daughter to render service. That an ac- tual loss is suffered under such circumstances the law will conclu- sively presume, and evidence that the daughter was accustomed to render no service will not be received." Cooley on Torts, p. 221 ; Pollock on Torts, p. 27. We thus see that, while the courts have protested against the rule of law requiring the allegation of the fiction upon which the action is based, they have wisely wrought out the substantial rem- edy by recognition of the relation, with all of its incidents, rights, and duties, of parent and child. It is difficult to conceive how a daughter who has been seduced and debauched as the testimony in this case shows can be said not to have had her ability to serve her father diminished; hence we place our decision upon the allega- tion and testimony in the record. His honor was in error in sus- taining the demurrer to the evidence, and the case should have been submitted to the jury under proper instructions. There must be a new trial. See 25 Am. & Eng. Bnc. Law, 193 et seq. For the English law on the subject, see Eversley's Dom. Rel. (2d ed.), pp. 559-562. Where plain- tiff's daughter, fourteen years of age, was seduced by a master to whom she was apprenticed, it was held that the father could not recover. Dain v. WychofC, 7 N. Y. 192, Smith's Cases on L. P. 98. A father may recover for the seduction of his married daughter if she be separated from her husband and living with the father as his servant. Harper v. Sec. 2 C] RELATIVE RIGHTS. 535 Luffkin, 7 Barn, & C. 387; Kirk v. Long, 7 U. C. C. P. 363; Anderson v. Rannie, 12 lb. 536, cited in 21 L. R. A. (N. S.) at pp. 265, 266. See "Seduction," Century Dig. §§ 9-16; Decennial and Am. Dig. Key No. Series, §§ 7, 8. BARTLETT v. KOCHBL, 88 Ind. 425. 1882. Action by Both the Father and the Child. [Action by tlie father, Kochel, for the seduction of his infant daugh- ter whereby he lost her services,. Verdict and judgment against Bart- lett and he appealed. Affirmed. By a statute of Indiana an unmarried female is permitted to recover for her own seduction. The girl, for whose seduction her father sues in this action, had brought an action in her own behalf against Bartlett and recovered damages for her se- duction. Her father was her next friend in that action. The judgment in that action was relied upon by Bartlett as a defense to any further recovery in this action. Such defense was held to amount to nothing, and Kochel's demurrer to that portion of the answer in which it was pleaded, was sustained.] HowK, C. J. . . It needs no argument, we think, to show that the court committed no error in sustaining the demurrer to these paragraphs of the answer. The next friend of an infant plaintiff is not a party to the action in such a sense as that the judgment therein rendered could be pleaded in bar of any cause of action he might have against the same defendant, growing out of the same transaction. Besides, the cause of action in favor of an unmarried female, for her ovii .^eduction, is purely statutory, and she "may recover therein such damages as mav be assessed in her favor"' (Civil Code of 1852, § 24; § 263, R. S.'l881) : while the cause of action in favor of the father of an infant daughter, for debauching and getting her with child, is of common law ori- gin, and he recovers in such action, in theory at least, for his loss of her services and the expenses incident to her lying-in or con- finement, etc. Pruitt v. Cox, 21 Ind. 15 ; Pelkner v. Scarlet, 29 Ind. 154; Taylor v. Shelkett, 66 Ind. 297. It seems to us, therefore, that the cause of action in favor of the unmarried female and the cause of action in favor of the father, although founded on the same transaction, are widely different each from the other, and, certainly, the parties to the two actions are not the same. The paragraphs of the answer under considera- tion, therefore, were not good pleas of former adjudication, and the demurrer thereto was correctly sustained. Under the error assigned upon the overruling of the motion for a new trial, the only point made by the appellant's counsel in ar- gument is, that the court erred in instructing the jury, in sub- stance, as follows : "In this case, if you find from a preponderance of the evidence, that the defendant begot plaintiff 's daughter with child, under the circumstances substantially alleged in the com- plaint, and in consequence of which the plaintiff lost the services of his daughter, the plaintiff will, in this action, be entitled to re- cover damages for such services lost, if you find any such exist, in 536 RELATIVE RIGHTS. [GJl. 6. this case, even though the said sexual intercourse, that produced said child, was occasioned as much by the misconduct of said daughter, or by the promptings of her own lascivious desires, as that of tiie defendant. In such a case, as against her father, she has no right to consent, and her act in consenting to, or even in producing, the criminal connection, was a nullity. ' ' The evidence is not in the record, and, therefore, the only question for decision is whether or not the instruction is erroneous in the abstract, or in any possible view of the case. All that the appellant's counsel have said in their brief in relation to the instruction is comprised in the statement that they think the court erred in so instructing the jury. We are of opinion, however, that the instruction is not erroneous. In McAulay v. Birkhead, 35 N. C. 28, which was an action by a father for the seduction of his infant daughter, the court said: "Whatever bearing the forward and indelicate con- duct of the plaintiff's daughter ought to have had, on the question of damages, it certainly had none on the question of his right of action. In respect to him, she had no right to consent, and her act in consenting to, or even procuring, the criminal connection was a nullity ; so the defendant must stand as a wrongdoer, from whose act the plaintiff has suffered damage." Shattuck v. Myers. 13 Ind. 46 ; Pruitt v. Cox, supra. We find no error in the record of this cause. The judgment is affirmed, with costs. Tbat a woman may, In the teeth of the old law and the maxim volenti non fit injuria, recover for her own seduction, has been established by recent decisions in North Carolina, which decisions have been followed in some of the other states, and this doctrine seems destined to supplant the old law everywhere, see Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397; Scarlett v. Norwood, 115 N. C. 285, 20 S. B. 459; Willeford v. Bai- ley, 132 N. C. 402, 43 S. E. 928. Whether or not both the female and her father may recover for her seduction while she is an infant, is discussed in Scarlett v. Norwood, 115 N. C. 285, 20 S. E. 459. The action for se- duction sounding in tort, the defendant may be arrested under proceed- ings in arrest and bail. Hoover v. Palmer, 80 N. C. 313; Kinney v. Laughenour, 97 N. C. 325, 2 S. E. 43. If the father has been adjudged a lunatic, or if he be a nonresident, the mother may maintain an action for the seduction of her infant daughter. Abbott v. Hancock, 123 N. C. 99, 31 S. E. 268. The action by the woman, for her own seduction, abates at her death; but the parent's action does not abate upon the child's death. Scarlett v., Norwood, 115 N. C. 285, 20 S. E. 459. That under the old law a woman could not recover for her own seduction, see Tiffany's Pers. & Dom. Rel. 279; Bish. Non-Cont. Law, sees. 57, 386; Schouler Dom. Rel. (5th ed.), sec. 261; Eversley's Dom. Rel. 560. The old rule that the father could not recover as father but only as master, is styled an "outworn fiction" in Willeford v. Bailey, 132 N. C. p. 404, 43 S. E. 928, and a "feigned issue" in Hood v. Sudderth, 111 N. C. a1 p. 220, 16 S. E. 397. Effect of proof that intercourse was by force- rape — to defeat the action. 18 Li. R. A. (N, S.) 587, and note. See "Judgment," Century Dig. § 1123; Decennial and Am. Dig. Key No Series § 584. Sec. 2 d.] RELATIVE EIGHTS. 537 (d) Death or Injury of Child by Act of Another. Eight of Par- ents to Recover for. KILLIAN V. RAILROAD, 128 N. C. 261, 38 S. E. 873. 1901. Death of Child Through Negligence of Another. LActloa by the father to recover damages for the death of his child through the alleged negligence of defendant. Judgment of nonsuit against plaintiff, from which he appealed. Affirmed.] Claek, J. This is an action by a father for the negligent kill- ing of his son. Upon the evidence the plaintiff was nonsuited, and appealed; but in this court the defendant interposed a prelimin- ary plea, ore tenus, to dismiss the action because the complaint does not state facts sufficient to constitute a cause of action. Rule 27 of this court (27 S. B. viii.) ; Manning v. Railroad Co., 122 N. C. 825, 28 S. E. 963. The Code (§ 1498) provides that whenever "the death of a person is caused by a wrongful act, neg- lect, or default of another," an action therefor may be brought by "the executor, administrator or collector of the decedent." Sec- tion 1499 provides that "the plaintiff in such action may recover such damages as are a fair and just compensation for the pecu- niary injury resulting from such death," and section 1500 pro- vides for the application and distribution of such recovery. At common law, this action could not have been maintained. Baker V. Bolton, 1 Camp. 493, in which Lord Ellenborough tersely stated the doctrine of the common law to be, "In a civil suit, the deatli of a human being cannot be complained of as an injury. ' ' "Where the injury subsequently resulted in death the action abated, — "Actio personalis moritur cum persona." Hence, though many courts doubted the soundness of the reasoning as applied to this class of cases, it was uniformly held in England and this country that the right of action ceased upon the death of the injured party. 8 Am. & Eng. Enc. Law (2d ed.), 855, and a page of authorities there cited, — especially Carey v. Railroad Co., 55 Mass. 475, 48 Am. Dec. 616 ; Eden v. Railroad Co., 53 Ky. 204 ; Hyatt v. Ad- ams, 16 Mich. 180. In Insurance Co. v. Brame, 95 U. S., at page 756, 24 L. Ed. 582, it is said: "The authorities are so numerous and so uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossi- ble to speak of it as a proposition open to question. It has been decided in many cases in the English courts and in many of the state courts, and no deliberate, well-considered decision to the con- trary is to be found." It is true, the father was entitled to the services of his son, if he had lived, till his majority, but when the death of the son ensued the cause of action abated. It is said in Hyatt V. Adams, 16 Mich. 180, upon a review of the English au- thorities (Cooley, J., concurring), that one case, and only one (Baker v. Bolton, supra), held that at common law the father could recover, after the death of the child, even for the value of ■538 RELATIVE RIGHTS. [Ch. 6. his services from the time of the injury up to the date of the death ; but, as here the death was instantaneous, that case does not apply. In England this rule of the common law was changed by Lord Campbell's act (9 & 10 Vict.), which gave the right of action for injuries sustained by neglect or wrongful act of another, notwith- standing the death of the person injured. That act began by ex- pressly reciting that at common law an action could not be main- tained in such cases. This act has been copied, with many varia- tions, in the states of the Union, but in nearly every instance such acts give the right of action to the personal representative. It has been, as a consequence of what has been said above, held that the statute confers a new right of action which did not exist before, and must be strictly followed. 8 Am. & Eng. Enc. Law (2d ed.), 858. Hence, where the right of action is given to the personal representative, "the parent cannot maintain it, even when the statute expressly provides that the recovery shall be for his or her benefit. In such cases only the executor or administrator can sue." 8 Am. & Eng. Enc. Law (2d ed.), 891. and cases cited upon that and two following pages. In this state the remedy was first given by St. 1854, e. 39 (Rev. Code, c. 1, §§ 8-10), which, with some modifications, are now §§ 1498-1500 of the Code. By these, as al- ready said, the action must be brought by the personal represent- ative. The plaintiff's counsel cited us to no case in this state, except Russell v. Steamboat Co.. 126 N. C. 961, 36 S. E. 191, in which the point does not arise and was not decided. The cases cited by them from other states are either recoveries for loss of service after the death of the child and up to the death (8 Am. & Eng. Ene. Law, 856), or where the statute confers the right of ac- tion upon the parent (8 Am. & Eng. Enc. Law, 895). In this state it has been held, as in all others, that the right of action did not exist at common law. Colliery. Arrington's Ex'rs, 61 N. C. 356; Best v. Town of Kinston, 106 N. C. 205, 10 S. E. 997; Howell v. Board, 121 N. C. 362, 28 S. B. 362. The right conferred by statute is plainly given to the personal representative only. Ijet it be en- tered: Action dismissed. For p, ruling to the effect that a parent may recover expenses incurred in consequence of the negligent killing of his minor child and also for the loss of time on the part of the parent incident to such an event, see R. R. Co. V. Covenia, 29 S. E. 219, 40 L. R. A. 253, citing Dennis v. Clark, 2 Cush. 347, 48 Am. Dec. 671. For a full discussion of the matter cov- ered by the principal case, see R. R. Co. v. Beall, 42 S. W. 1054, 41 L. R. A. 807. See 19 L. R. A. (N. S.) 633; 9 lb. 1193, and notes. See "Death," Century Dig. § 43; Decennial and Am. Dig. Key No. Series § 31. DONAHOE v. RICHARDS, 38 Me. 376, Smith's Cases L. P. 82. 1854. Injury to Child, Which Causes Damage to Child Only. (A father sued a school committee for alleged improper expulsion of his infant child from a public school. Judgment of nonsuit against the plaintiff, and he appealed. Affirmed.] Sec. 2 d.] RELATIVE RIGHTS. 539 Appleton, J. . . . The question presented is, whether the father, if the expulsion were wrongful, has thereby received any such injury as will entitle him to pecuniary compensation. A minor child is subject to the commands of its father during minor- ity, and the father is entitled to its services. Being entitled to such services he can maintain an action for any wrongful act done to the child, by which it is disabled or made less able to render its due and accustomed service. The loss of service in such case is held to be the gist of the action. Hall v. Hollander, 4 Bar. & Cress. 660. This principle, however, has been so far extended as to enable the father, when the child is too young to render any service, to recover in case of a bodily injury for the trouble and ex- pense he may have incurred in the care and cure of the child. Dennis v. Clark, 2 Cush. 347. But in such case lie cannot recover for the injury done to his parental feelings, or for the pain and suffering, or the circumstances of insult and aggravation with which the infliction of the injury may have been attended. Plem- ington V. Smithers, 2 C. & P. 292; "Whitney v. Hitchcock, 4 Denio, 461. For injury to the person, the reputation, or the property, the suit must be in the name of the child, and the damages be awarded in accordance with the circumstances which may have accompanied and aggravated the wrong. In this case there is no act done by which the ability of the child to render service is diminished. The school is for her benefit and instruction. The education is given to her, and if wrongfully de- prived thereof, the loss of such deprivation falls on her. The wrong committed, the injury done, is done to her alone ; and if her rights have been violated, she alone is entitled to compensation. The claim of a plaintiff, under circumstances like those in the present case, has heretofore been examined and determined by courts entitled to the highest consideration, and with an entire uniformity of result. Nonsuit confirmed. See Spear v. Cummings, 23 Pick. 224, and Sherman v, Charlestown, 8 Cush. 161, which are cited in the principal case. See "Schools and School Districts," Century Dig. § 347; Decennial and Am. Dig. Key No. Series § 177. WILTON V. MIDDLESEX R. R. CO., 125 Mass. 130, Smith's Cases L. P. 83. 1878. Injury to Child Causing Damage to Both Parent and Child. [The father of an infant child sued for damages resulting to him from alleged negligence of the defendant, whereby the child was injured. Judgment against the defendant. Defendant alleged exceptions. Excep- tions overruled. The child was twelve years old when injured. She recovered five thousand dollars from the defendant for the same injuries which were the basis of this action. Her father, the present plaintiff, acted as her next friend in the action in which she recovered the damages. That recovery was relied upon as a defense to this action; hut the judge ruled that it was no bar to this action, and that the father could recover the 540 RELATIVE RIGHTS. [Ch. 6. "reasonable value ot the child's net earnings over and above what, but for the accident, her support would have cost him."] Lord, J. . . If the defendant's servant, in the course of his employment, carelessly ran over the child, and did an injury to her which resulted in a loss of service to the parent, the defend- ant is liable, wholly irrespective of the question whether such child was a passenger. The previous suit is not a bar to the pres- ent. The money which the plaintiff received in the former action is not his money ; nor can he appropriate it to the payment of labor which the child was bound to perform. The measure of damages in the former action was the injury to the child, and not the in- jury to the father. It is analogous to the cases, formerly quite frequent, in which, for injuries to a vnfe, the husband and wife must join for personal injuries to the wife ; but, for the expenses incident thereto, the husband must bring his sole action in his own name. . . The principles acted upon by the presiding judge were quite sufficiently favorable to the defendant. Excep- tions overruled. That one action lies by the child for its suffering and injury, and an- other action lies by the parent for loss of service and for expenses in- curred, see Scarlett v. Norwood, 115 N. C. at p. 286, 20 S. E. 459; Cuming v. Brookl. City R. R. Co., 109 N. Y. 95, 16 N. E. 65; 21 Am. & Eng. Enc. L. 1044; 6 L. R. A. (N. S.) 552, and note. As to recovery by the parent If the child be too young to earn anything at the time of the injury, consult Russell v. Steamboat Co., 126 N. C. 961, 36 S. B. 191, citing Hurst V. Detroit R. R., 84 Mich. 539, 48 N. W. 44, and see also Dennis v. Clark, 2 Cush. 347, Smith Cases on L. P. 84, which limits the father's recovery, in such cases, to expenditures incident to the injury of the infant, and shows that the English law allowed the father nothing in such cases, as that law stood in 1848; and see also Cuming v. Brookl. City R. R,, supra, which says that the English doctrine denies the right of the parent to recover even for expenses incurred by reason of the child's injury, if the child be too young to render services; and holds that in New York the parent may recover not only for expenditures rendered necessary by the injury to the child, but for estimated prospective earnings of the child. See 29 Cyc. 1638, 1651. See "Judgment," Century Dig. § 1123; Decennial and Am. Dig. Key No. Series § 584. WILLIAMS v. RAILROAD, 121 N. C. 512, 28 S. E. 367. 1897. When the Parent Cannot Recover. [Action by the father foi^ damages resulting to him from the injury of his son while employed by the defendant without the father's permis- sion. There was no proof of any negligence of the defendant. Judg- ment against plaintiff, and he appealed. Affirmed. The facts appear in the opinion.] Clark, J. The defendant employed the minor son of the plain- tiff. The son told the defendant's representatives that his father consented to his working for himself, but in fact his father did not know of the defendant's employing his son ; and the latter was Sec. 2 e.] relative rights. 541 injured while in the defendant's service, but, it is admitted, vpith- out any negligence on the part of the defendant or of its servants. The plaintiff sues for loss of services after and in consequence of the injury. For the services the son had rendered, compensation belonged to the father; but, as the loss of further services was caused by an injury which was not caused by the fault of the de- fendant, it cannot be held liable for such loss. No error. See "Parent and Child," Century Digest. §§ 86-90; Decennial and Am. Dig. Key No. Series § 7. (e) Parent's Bight to Earnings of Child. BENSON V, REMINGTON, 2 Mass. 113, Smith's Cases L. P. 51. 1806. Father's Right to Recover Child's Earnings. [Assumpsit by the father for earnings or wages of his minor child, a daughter, alleged to be owing by the defendant. Verdict against the de- fendant, who moved for a new tial. Upon that motion the opinion is written. Motion overruled, and judgment against the defendant on the verdict. Plaintiff forsook his wife and children. The defendant in commiser- ation for the destitute condition of one of the children thus forsaken, took it and cared for it for some years. The plaintiff returned in July, 1801, and demanded that defendant pay him wages for the time the child had been with the defendant. That matter was dropped and plain- tiff received nothing. Plaintiff then consented that the child should re- main with the defendant until such time as the plaintiff chose to take it away. This was all that was said or agreed to. The child remained with the defendant, under this arrangement, for three years and five months. The plaintiff claimed compensation for the child's services for this period. 'There was a verdict against the defendant subject to the opinion of the court as to whether or not the plaintM could recover.] Sedgwick, J. I will not say that, where a parent Avholly aban- dons his child, as the defendant's counsel seems to suppose the plaintiff has done here, he has a right to the earnings of such child. This is not, however, the present case. It appeared that plaintiff had paid attention to the child. Everything that had taken place relative to the services of the daughter, antecedent to July, 18,01, was then compromised between the parties, and the daughter con- tinued in the service of the defendant three years and five months under a new agreement, or, to saj^ the least, under a caution from the plaintiff that his legal claims were not waived. The plaintiff was responsible for any necessary expenses of his child ; and such expenses, if any had been incurred, were proper to be submitted to the jury, by way of set-off against this demand for wages — of the amount of both which, they were the regular and competent judges. I see no foundation to doubt of the correctness of the de- cision of the judge at the trial, and am therefore against setting aside the verdict. See "Parent and Child," Century Dig. §§ 70-85; Decennial and Am. Dig. Key No. Series §§ 5, 6. 542 RELATIVE RIGHTS. [Ch. 6. McGARR V. N. & P. WORSTED MILLS, 24 R. I. 447, 53 Atl. 320, 60 L. R. A. 122. 1902. Mother's Right to the Earnings of Her Child. I Plaintiff, who is a married woman, living with her husband, brought this action of trespass on the case to recover damages for a loss of serv- ices, etc., of the minor child of herself and husband, resulting from an injury caused by the alleged negligence of the defendant. Ver- dict against the defendant, who asked for a new trial, and upon this petition the opinion is written. There were a number of points raised, and a new trial awarded on a point not germane to the question under consideration in this section. Only so much of the opinion as discusses the rights of a mother to the services and earnings of her minor child, is here inserted. The facts appear in the opinion.] TiLLiNGHAST, J. . Defendant's counsel starts out with the broad contention that the action will not lie, on the ground that the plaintiff, as the mother of said Sarah, is not entitled to maintain it : First, because she was not bound to support her child, Sarah; and, second, because the right of action for loss of service, having become vested in the father during his lifetime, could not become di^'ested and vest in the mother after his death. Having taken this position at the .jury trial, the defendant ob- jected to the introduction of any testimony as to damages. And as the trial court overruled this objection, subject to exception by the defendant, the first question which logically presents itself is whether the action will lie. 1. That at the common law the father is entitled to the benefit of his minor children's labor while they live vsnth him and are supported by him, there can be no doubt. His right to their serv- ices, like his right to their custody, rests upon the parental duty of maintenance, and is said to furnish some compensation to him for his own services rendered to the child. Schouler. Dom. Rel. (5th ed.), § 252; Brown v. Smith, 19 R. I. 319, 33 Atl. 466, 30 L. R. A. 680. The mother, on the other hand, not being thus bound for the maintenance of her minor children, has no implied right, at the common law, to their services and earnings. The common-law doc- trine as thus briefly stated, however, has been greatly relaxed by modern decisions in this country, if not in England ; and the strong tendenej' of the courts in this country, as well stated by Field, C. J., in Horgan v. Mills, 158 Mass. 402, 33 N. B, 581, 35 Am. St. Rep. 504. "is to give to a widow left with minor children, who keeps the family together and supports herself and them with ■the aid of their services, very much the same control over them and their eai'nings during their minority and to impose on her, to the extent of her ability, much the same civil responsibility for their education and maintenance, as are given to and imposed on a father. ' ' The chief justice then stated the opinion of the court in that ease to be as follows : ' ' "We are of opinion that when a minor child lives with its mother, who is a widow, and the child is sup- ported by the mother, and works for her as one of the famih^ the Sec. 2 e.] relative rights. 543 mother is entitled to recover for the loss of services of the child, and for labor performed and expenses reasonably incurred in the care and cure of the child, so far as they are the consequences of an injury to the child negligently caused by the defendant." Thi.s statement of the law is abundantly supported by the authorities cited in the opinion, and by numerous others which might be added. See 17 Am. & Bng. Bnc. Law (1st ed.) p. 387, and cases collected in notes 1 and 2 ; Drew v. Railroad Co., 26 N. Y. 49 ; Mc- Elmurray v. Turner, 86 Ga. 215, 12 S. B. 359 ; 2 Kent, Comm. 205, 206; Nightingale v. Withington, 15 Mass. 274, 8 Am. Dec. 301; Railroad Co. v. Cook, 63 Miss. 38; Commissioners v. Hamil- ton, 60 Md. 340, 45 Am. Rep. 739; Kennedy v. Railroad Co., 35 Hun, 186; Moritz v. Garnhart, 7 Watts, 302, 32 Am. Dec. 762; Purman v. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441 ; Matthews v. Railway Co., 26 Mo. App. 75. 2. It being well settled, then, that a widow may maintain an action for loss of services of her minor child, the next question which arises is whether the plaintiff can maintain her action, the cause of which accrued prior to the death of her husband. The an- swer to this question, in so far as it relates to the plaintiff's right to recover for loss of service, etc., prior to the death of the father, depends primarily upon the relation which existed between the mother and daughter at the time of the accident as to the right of service ; that is, whether the mother or the father of the girl at that time was legally entitled to her services. And as the father was presumably entitled thereto, it devolves upon the plaintiff to prove that he had in some way relinquished his right or conferred it upon her. While the right to the child's services is naturally in the father, he can doubtless surrender this right to another by contract or otherwise, in various ways, as (a) by binding the child as an apprentice (Ames v. Railroad Co., 117 Mass. 54], 19 Am. Rep. 426) ; (b) by allowing another person to so act that he stands in loco parentis (Whitaker v. Warren. 60 N. H. 26. 49 Am. Rep. 302). This principle is fully recognized in Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73, where it was held that the right of a parent to the services of his minor children "is bottomed on his duty to maintain, protect, and educate them. . But this right and this duty may be transferred to another, and may be re- linquished to a child." The law doubtless is, however, that the father cannot permanently transfer his rights and duties to an- other, except by deed. State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223. [PACTS.] The testimony upon which the plaintiff relies to show that the services of Sarah belonged to her at the time of the accident is to the effect that the plaintiff is, and long has been, the real head of the family ; that she owns the property, takes care of the family, and pays the bills ; and that, by express direction from the father in his lifetime, she was entitled to, and did, receive all of the earnings of the daughter, Sarah. She employed the phy- sician who has attended the daughter since the accident, and is 544 RELATIVE RIGHTS. [CJl. 6. personally responsible to him for his services. Dr. O'Keefe testi- fies that he rendered his services at the request of the mother ; that the night he Avas called he saw the case would be prolonged, and he had a talk with the mother, and she told him she wanted him to attend her daughter, and would see him paid ; and that his serv- ices have been charged to her. The testimony further shows that the father had no property, and no income except his current earnings. In view of this state of the proof, plaintiff's counsel contends that the wages of Sarah were the property of the mother, for the recovery of which she could have maintained an action. In other words, the contention is that the arrangement and under- standing between the father and mother of Sarah as to her wages, taken in connection with the other facts aforesaid, amounted to a relinquishment by the father of his right to the daughter's serv- ices and earnings and an assignment thereof to the mother, and hence that the latter can recover for the loss thereof. We think this is so. . . . See Hammond v. Corbett, 50 N. H. 501, 8 Am. Rep. 288, where there is a more elaborate discussion of the mother's rights. That ease does not go to the full length of the principal case, because in that case the father was dead, and the right of the mother while the father is alive, was not presented. For a mother's rights in North Carolina, see Jordan v. Coffield, 70 N. C. 110; In re Lewis, 88 N. C. 31; Revisal, sec. 1765; Mor- decai's Law Lect. 389. See "Parent and Child," Century Dig. §§ 86-99; Decennial and Am. Dig. Key No. Series § 7. BROWN V. RAMSAY, 29 N. J. L. 117, 119-121. 1860. When is the Father Entitled to the Services and Earnings of His Adult Children? [The plaintiff sued to recover the value of work done by his adult son who lived with plaintiff and, on account of weakness of mind, was cared for and treated by plaintiff as if he were still a minor. There was judgment against the defendant, who took the case to the supreme court by certiorari. Affirmed.] Whblpley, J. . . . The court must have decided that the son was non compos mentis, incapable of taking care of himself or of making any valid contract, and, as such, is still sub potestate pa- tris, like an infant. The right of a father to the services of his sane child ceases at twenty-one. It is then the right of the child to be emancipated, to be thenceforth his own raa,ster, make his own con- tracts and receive into his own hands the fruit of his own labor. But arriving at the age of twenty-one is not ipso facto emancipa- tion. The child may elect still to remain the servant of the father, to abide under his roof, and to receive sustenance and support from him. In such a case he is not emancipated, and the father is liable for his support and entitled to receive his earnings. Over- seers of Alexandria v. Overseers of Bethlehem, 1 Harr. 122. This, it is true, was a settlement case, but it seems to me that the prin- ciples upon which it was decided rule this case. That case holds Sec. 2 e.] RELATIVE RIGHTS. 545 distinctly the doctrine that attaining the age of twenty-one is not emancipation ; that whether it is so or not, is a question to be set- tled by the circumstances of the case ; that it requires the election of the child to make it emancipation, and that an idiot, or person of such weak mind as to be incapable of making the election, is not emancipated, and cannot be, at attaining that age, so far as to prevent the acquisition of a derivative settlement. That case, I think, VFas rightly decided. But I am by no means prepared to hold that an imbecile child over twenty-one years, not residing with his father and supported by him, cannot be emancipated by the act of the father turning him out of his family and from the shelter of his roof, and refus- ing to maintain him, so far as to enable him to sue for his own wages. In such a ease the emancipation would be complete even without the assent of the child, for the common-law liability of the father to support his child ceases when he attains his majority ; he is no longer liable because of the infancy of the child, ilills v. Wyman, 3 Pick. 207, and cases there cited; Cook v. Bradley, 7 Conn. 57 ; 1 Parsons on Cont. 259. After that time it recjuires either the express or tacit assent of the father to the continuance of his child in the relation of his unemancipated servant. That assent may be manifested by permitting the child to remain in his family as before, supported and sustained by him. The female children of many parents often remain in this way unemancipated long after attaining majority, rendering service to the father and supported by him, and for such services so rendered it has been held that no action lies. Ridgway v. English, 2 Zab. 416. The law ■will not presume any change in the existing relation of parent and child from the mere fact that the child is twenty-one. Whether emancipation has taken place or not must be a question of fact, not of law. In this case there was proof before the court that the child had always lived with and been supported by the father, although he had occasionally worked out and received his own Avages; but the latter fact would not of itself prove emancipation. Upon the evi- dence before them, the court might lawfully decide that the rela- tion of a non-emancipated child still subsisted, and we must pre- sume they did so decide. . . . The judgment of the common pleas must be affirmed. The principal case is a peculiar one, in that the adult child was of unsound mind. That children incapable of taking care of themselves by- reason of mental or bodily infirmity are not emancipated by arriving at age, is stated to be the law in a note to 7 L. R. A. 176, citing several cases from Pennsylvania and one from Vermont in support of the state- ment. That persons occupying the relation of one family cannot recover from each other for services or board, in the absence of a contract or understanding to that effect, is well settled; but arriving at age ordi- narily works a complete emancipation, and the right of the parent to his adult child's services then ceases, as does also his liability for such child's support. Schouler, Dom. Rel. sec. 269; Smith's Cases L. P. 74-78; Mordecai's L. L. 109-114. For further discussion see 29 Cyc. 1672; 21 Remedies — 35. 546 RELATIVE RIGHTS. [CJl. 6. Am. & Eng. Enc. L. 1059; 11 L. R. A. (N. .S.) 873, and elaborate note. See "Parent and Child," Century Dig. §§ 70-85, 165-175; Decennial and. Am. Dig. Key No. Series, §§ 5, 6, 16. TENN. MFG. CO. v. JAMES, 91 Tenn. 154, 18 S. W. 262, 15 L. R. A. 211. 1892. Emancipation of Infants. Effect of on Parent's Right to Earnings. [Minnie James, by her next friend, sued in quantum meruit for work and labor done by her for the Tenn. Mfg. Co. Judgment against the company. The company carried the case to the supreme court by writ of error. Reversed. ' The contract by which Minnie James was employed was in writing executed by her and her father also. It contained a clause by which wages earned and unpaid should be forfeited by certain acts of the em- ployee. By this clause there was a forfeiture of the wages sued for. The judge below ruled that the contract in question was with the minor and that she could repudiate it. Only a part of the opinion is here in- serted.] LuETON, J. . . The circuit judge being of opinion that the contract was invalid, as being one with a minor who had a legal right to repudiate same, gave judgment for the plaintiff. In this we think his honor erred. If the contract had been alone with the minor, she might undoubtedly repudiate it, and recover upon a quantum meruit. The law would give the infant the privilege of judging whether such a contract was beneficial or not, and of avoiding it if she elected to do so, and recovering the value of her services as if she worked without any contract. 10 Amer. & Eng. Enc. Law, tit. "Infant." But this contract was, in law, with the father, who agreed that the wages in law due to him might be paid over to his child, "subject to all the conditions of this contract." The wages of a minor, peculiar circumstances out of the way, are due to the father. This springs from his legal duty to support and educate his child. He may permit the minor to take and use his own earnings. This is called "emancipation," and emancipation will be a defense to the father's suit for the minor's wages. It may be express or implied; entire or partial. It may be condi- tional. It may be in writing or oral ; for the whole minority or for a shorter term : as to a part of the child 's wages or as to the whole. Emancipation will not enlarge the minor's capacity to con- tract ; it simply precludes the father from asserting his claim to the wages of his child. Bish. Cont. § 898. If one employ a minor with notice of the non-emancipation of the infant, it will be no defense to the father's suit for the wages that the child has re- ceived them. On the other hand, payment to the father will be no defense to the minor's suit, if the employer knew of the fact of emancipation. These principles of the common law are well settled, and have not been affected by statute. Cloud v. Hamilton, 11 Humph. 105. The cases in America are collected in a note to Wilson V. :McMillan. 3.') Amer. Rep. 117. tSec. 2 e.] relative rights. 347 In view of these principles, we must construe the contract of the father as an emancipation, subject to the conditions as to dam- ages in case his child shall quit without cause and without the stipulated notice. It is as much as if he had said : ' ' My child is a minor. As such, I am entitled to her wages. I am willing that she shall work in your mill, and that the wages she may earn shall be paid to her. I agree that she shall comply with this contract, and, if she does not, then the wages legally due me shall oe de- tained by you to the extent provided in the contract I make for her, and only such wages paid to her as I would be entitled to re- ceive if the contract were exclusively with me." This was a con- ditional emancipation, under a special contract made by and with the father for himself and his child. Her emancipation was par- tial. The father, having a legal right to her entire wages, has stipulated that none shall be paid her beyond the sum due under this agreement with him. If this contract is binding on him, the minor cannot recover beyond its limits. . . [The contract was held to be a valid one and binding on the father, and, hence, a bar to the action for the reasons given.] See "Parent and Child," Century Dig. §§ 70-76, 165-175; Decennial and Am, Dig. Key No. Series §§ 5, 16. COMMONWEALTH v. GRAHAM, 157 Mass. 73, 31 N. E. 706, 16 L. R. A. 578. 1892. Marriage, How Far an Emancipation. [Prosecution under a statute, for non-support of wife. Verdict of guilty. Defendant alleged exceptions. Exceptions overruled. The defendant married when he was nineteen years old, and without the consent of his father.. After his marriage his father still took most of his wages. He requested the judge to chalrge that his marriage with- out his father's consent did not work an emancipation and entitle him to his earnings. The marriage was solemnized in Maine. 1 Field, C. J. . . The consequences of this marriage must be the same as if it had been solemnized in this commonwealth ; and the presiding justice, therefore, correctly ruled that this mar- riage "imposed upon the defendant all the duties and responsi- bilities of the marital relation." The real question is whether, when a minor son marries without the consent of his father, and the father never consents to it, and needs the son's wages for his support and the support of his fam- ily, the father is entitled to the son's wages during minority in preference to the wife, who also needs the wages for her support. The ruling was that the ' ' wife would be entitled as of right to re- ceive support from ' ' her husband, and that he ' ' would be entitled as of right to such portion of his wages as to enable him to support his wife; that the father could only claim the rest." It seems to be settled that the marriage of a minor son, with the consent of his father, works an emancipation; and it is not clear that the 548 RELATIVE RIGHTS. [CJl. 6. marriage of a minor son without his father 's consent does not have the same effect, although the decision in White v. Henry, 24 Me. 531, is contra. It has been said that "the hiisband becomes the head of a new familj^ His new relations to his wife and children create obligations and duties which require him to be master of himself, his time, his labor, earnings, and conduct." Sherburne v. Hartland, 37 Vt. 528. There seems to be little doubt that, when an infant daughter marries, she is emancipated from the control of her parents. Aldrich v. Bennett, 63 N. H. 415 ; Burr v. "Wilson, 18 Tex. 367 ; Porch v. Fries, 18 N. J. Eq. 204; Rex v. Wilmington. 5 Barn. & Aid. 525; Rex v. Bverton, 1 East, 526; Northfield v. Brookfield, 50 Vt. 62. See, however, Babin v. Le Blanc, 12 La. Ann. 367. The meaning of emancipation is not that all the dis- abilities of infancy are removed, but that the infant is freed from parental control, and has a right to his own earnings. In Taunton V. Plymouth, 15 IMass. 204, it was intimated that the marriage of an infant son with the consent of the father entitled the son to his own earnings for the support of his family ; and in Davis v. Caldwell, 12 Cush. 512, it was said that an infant husband is liable for neces- saries furnished for himself and his family. It is clear, we think, that it is the duty of an infant husband to support his wife, and that, if he have property and a guardian, it is the duty of the guardian to apply the income, and, so far as is necessary, the principal, of his ward's property, to the maintenance of the ward and his family, under Pub. St. c. 139, § 30. We are of opinion that these considerations make it necessary to hold that an infant husband is entitled to his own •wages, so far as they are necessary for his own support and that of his wife and children, even if he married withoiit his father's consent, and that the ruling of the court was sufficiently favorable to the defendant. Whether sound policy does not require that in every case in which the marriage is valid an infant husband should be entitled to all his earnings need not now be decided. Exceptions overruled. As to how far marriage effects an emancipation, see also the note to State V. Stigall, 22 N. J. L. 286, inserted at ch. 6, sec. 2, (a). Not only may emancipation be effected by contract between parent and child, but also by cruelty, neglect, abandonment, etc., on the part of the parent — leaving the child to shift for itself, or treating it so badly that it is justified in law in leaving the parent. So, acting in so depraved a man- ner as to make it improper for the child to live with its father, will work an emancipation. Atwood v. Holcomb, 39 Conn. 270, Smith's Cases L. P. 65, 68; Nightingale v. Withington, 15 Mass. 272; note in 35 Am. Riep. 117. "A father may, by agreement with his minor child, relinquish to the child the right he has to his services and earnings, and he will afterward have no right to claim his wages from his employers, but the child may claim and recover them in his own name for his own benefit. Such an agreement operates as a release of the father's right, and he has no power to reclaim or resume it afterward. Preston, Touchstone, 307 : Litt. sec. 367; nor will his right revive, unless from the actual agreement of the minor or one fairly inferable from the circumstances and conduct of the parties. An agreement of the father with his son stands on a different ground from his agreement with a third person, to give up to Sec. 3 a.] relative rights. 549 him the control of his child for a limited, time or during minority. As between them, the right of the father over his child has been held a personal trust which cannot be transferred unless by indenture under statute, and which it has been held the father may resume at pleas- ure, . . . though upon this point the decisions do not agree." Hall V. Hall, 44 N. H. 293, Smith's Cases on L. P. 78, 79. As the earnings of a minor child belong to the father, he cannot give such earnings to the child, after they have been paid or earned, any more than he can give away any other property, in violation of the statute of 13 Elizabeth, which makes void, as to creditors, all disposi- tions of property made with intent to hinder, delay, or defraud the cred- itors of the donor, etc.; but there is a great difference between that which is already earned and the prospective earnings of a child. The creditors of the father have no right to the services of the child, for the child Is not the property of the father. Therefore, if the father eman- cipate the child, its earnings subsequent to such emancipation are free from the claims of the father's creditors- Winchester v. Reid, 53 N. C. 377, 57 Pac. 908; 45 L. R. A. 645; note at pp. 117-121 of 35 Am. Rep., where will be found a very valuable condensed statement of the law governing the rights of all concerned in the earnings, status, etc., of an emancipated child, as well as what constitutes ©mancipation of a minor. See also 29 Cyc. 1672 et seq. See "Parent and Child," Century Dig. § 73; Decennial and Am. Dig. Key No. Series § 5. Sec. 3. Master and Servant. (a) Master's' Liability to Servant on Contract. SMITH V. LUMBER CO., 142 N. C. 26, 54 S. E. 788. 1906. Remedies of Servant for Breach of Contract of Hiring. Entire Con- tracts. Wages Payable in Installments. Constructive Service. Duty of Discharged Servant to Seek Other Employment. Estoppel hy Judgment on One Installment. [Action for one hundred and fifty dollars alleged to be due upon a contract of hiring. Verdict and judgment against defendant, and de- fendant appealed. Affirmed, except as to one point. Plaintiff alleged that he was employed by the defendant for the term of four months at $75 a month; that he was paid for the first month, and then discharged without cause; that he failed, after diligent effort, to obtain other employment; that he sued for the second installment of wages and obtained judgment. The plaintiff's term of service began on Feb. 5, 1904, and he was paid for the month ending March 5, 1904. For the wages due on April 5, he brought suit on May 5, at which time there was also due the wages for the month ending May 5, which were not included in the suit. He now sues for the wages due on May 5, and for the amount due on June 5. Although there were two installments due on May 5 — when he brought his first action — only one was included in the suit. The defendant insisted that by failing to sue for the third installment, which was due when he sued for the second, the judgment rendered for the second installment was res judicata and an estoppel as to all installments due at the time that action was commenced. The Judge ruled otherwise, and so instructed the jury on the fourth issue, which was submitted to raise this question. The defendant also insisted that plaintiff could not sue for the install- ments as they fell due, but could only sue in quantum meruit or for damages for breach of contract; and, that having brought suit on one in- 550 RELATIVE RIGHTS. [Ch. 6. stallment, such action was a complete bar to any further recovery on the contract. The judge ruled against this position. On the third Issue, which was as to how much the plaintiff was en- titled to recover, the defendant requested the judge to charge that, if the plaintiff did not try to get work after his discharge, he could recover nothing in this action. The judge refused this request.] Walker, J. When this case was before us at the last term (140 N. C. 375, 53 S. E. 233), it appeared by admission of the parties that the plaintiff had brought suit before the magistrate after June 10, 1904, and at a time when the last installment had fallen due, and it was then contended with much force that having sued for one of the installments, when all were due, and recovered judgment, the plaintiff could not sue and recover for any other installment, because, to prevent unnecessary and oppressive litiga- tion, the law construes the former adjudication to be a full satis- faction and a complete bar. The position, whether intrinsically correct or not, seems to be sustained by high authority. Jarrett v. Self, 90 N. C. 478 ; Keams v. Heitman, 104 N. C. 332, 10 S. E. 467; McPhail v. Johnson, 109 N. C. 571, 13 S. E. 799; 2 Parsons, Cont. 464; Freeman, Judgments, § 240; Ref. Dutch Church v. Brovra, 54 Barb. (N. Y.) 191; Am. & Eng. Enc. Law (2d ed.). p. 791 and note 1. It now appears from the testimony that the suit before him was actually commenced on May 5th, and the de- fendant contends that having recovered judgment if for but the amount of one installment, the plaintiff cannot again siie for the other installment which was then due, upon the principle just mentioned, and that the judgment should be reduced by the amount of one installment, or .$75. So that we must now decide the question. . In this case, the suit was commenced on May 5th as the sheriff received the summons from the clerk on that day. The plaintiff 's term of service began on February 5th, and the third month ex- pired on May 4th, so that the salary of the third month was due immediately on the expiration of that day, and suit could there- fore have been brought for the same on the fifth day of that month. "Where wages are by express stipulation payable at stated pe- riods during the term, the wages for any period are due and pay- able immediately on the completion thereof." 20 Am. & Eng. Enc. (2d ed.) 21; White v. Atkins, 8 Cush. (Mass.) 367-371; Harris v. Blen, 16 Me. 175; Green v. Robertson. 64 Cal. 75, 28 Pac. 446. As one full month's work had been performed, one full month's pay was then due and demandable. The plaintiff, there- fore, could have recovered the amount of both the second and third installments in the suit brought on the 5th of May, and is conse- quently barred from the recovery of either one of them in this ac- tion, under the principle settled by the authorities above cited. The defendant also contended that the plaintiff could not sue on the successive installments as they fell due, but must sue on a quantum meruit or for damages for the breach of the contract, and that his recovery for the one installment was a complete satis- Sec. 3 a.] relative bights. 551 faction of all damages arising from the breach of the contract, as his recovery in either of the other two forms of action would have been. We do not assent to this proposition in its entirety. Nu- merous and well-considered authorities hold, in accordance with what we consider the correct principle and the better reason, that when the contract is entire and the services are to be paid for hy installments at stated intervals, the servant or employe, who is. wrongfully discharged, has the election of four remedies: (1) He may treat the contract as rescinded by the breach and sue imme- diately on a quantum meruit for the services performed, but in this ease he can recover onl.y for the time he actually served. (2) He )i)ay sue at once for the breach, in which case he can recover only his damages to the time of bringing suit. (3) He may treat the contract as existing and sue on it at each period of payment for the salary then due. (We do not consider the right to proper deduction in this case, as it is not now presented). (4) He may wait until the end of the contract period, and then sue for the breach, and the measure of damages will be prima facie the salar)' for the portion of the term unexpired when he was discharged, to be diminished by such sum as he has actually earned or might have earned by a reasonable effort to obtain other employment. This rule as thus stated, is supported bv the great weight of authority, 14A.&E. Enc. (1st ed.), 797 ; 20 A. & E. Enc. (2d ed.), 36 et seq., and it is clearly recognized and adopted by this court in Blarkham V. Warkham, 110 N. C. 356, 14 S. E. 963. The difficulty in estab- lishing the right to sue upon the contract for the whole amount of the wages originated in the doctrine of "constructive service." The law, in theory at least, required that the servant wrongfully dismissed before the expiration of his term must keep himself in readiness at all times to perform the required service, and an aver- ment that he had done so was necessary in an action on the con- tract for a breach. By a fiction of the law, his constant readiness to perform was considered equivalent to actual service, so as to en- able him to recover the full amount of the wages, the same as if the service had been actuallj' performed, and it was so construed by the courts. But this principle was inconsistent with the rule as to the measure of damages, which permitted the master to show in diminution of the servant's recovery for wages that the latter either obtained or could have obtained other employment, inas- much as to be always strictly ready he must be always idle. The two requirements of the law could not reasonably and logically coexist, and for this reason the doctrine of constructive service, first asserted by Lord Ellenborough in Gandell v. Pontigney. 4 Camp. 375, was repudiated in later cases and the servant's remedy was restricted to either a quantum meruit (if he elects to rescind the contract) or an action for the damages resulting from the breach, and his right to an action for the wages, treating the con- tract as constructively performed, was denied. Goodman v. Pe- coek, 15 Q. B. 74; Gutterv. Powell, 2 Smith's L. C. (9th ed.). 1245; 20 A. & E. Enc. 40. 552 RELATIVE EIGHTS. [CJl. 6. This court recognized the doctrine of constructive service in Hendrickson v. Anderson, 50 N. C. 246, and Brinkley v. Swice- good, 65 N. C. 626, to the extent of expressly asserting the right of the servant to recover the full amount of the wages for the unex- pired portion of the term, provided his action is brought after the end of the term, even though there had been no actual service dur- ing that time. The case of Costigan v. Railroad, 2 Denio (N. Y.) 609, 43 Am. Dec. 758, is cited and approved in Hendrickson v. An- derson, and in that case the doctrine is thus stated : ' ' Where one contracts to employ another for a certain time at a specified com- pensation and discharges him without cause before the expiration of the time, he is in general bound to pay the full amount of wages for the whole time." The court also there holds that the said amount may, of course, be diminished by showing that the servant has during the same period engaged in other business. This rule for the measure of the damages accruing for a wrongful dismissal is surely the equitable, and, we think, the correct, one, whatever may be the true principle upon which it should be held to rest. If the doctrine of constructive service is illogical, in view of the right of the master to have the damages diminished by showing that the servant engaged in other business and consequently was not al- ways ready to perform the service, it does not follow that the rule itself as to the damages is not a sound one, for other cogent rea- sons may and have been assigned in its support. As a master has, by his wrong in breaking the contract, prevented the servant from completing the work for which he had stipulated, the measure of the servant's damages would be the amount which he will actually sustain in consequence of the defendant's default, and that is the amount of the wages he would have earned had the contract been fulfilled. Laying down the rule in Hendrickson v. Anderson, supra, this court said: "It would seem to be a dictate of reason that if one party to a contract be injured by the breach of it by the other, he ought to be put in the same condition as if the contract had been fully performed on both sides. He certainly ought not to be a loser by the fault of the other ; nor can he be a gainer without introducing into a broken contract the idea of something like vin- dictive damages. The true rule then is to give him neither more nor less than the damages which he has actually sustained, and so we find the authorities to be. ' ' The court then holds, as we have shown, that the damages are the full amount of wages for the whole time, less the amount re- ceived or which could have been realized from other employment. The right to full damages, measured bj^ the wage rate, arises from the master's breach, and his wrongful act in preventing the serv- ant from performing the service. He will not be permitted to take advantage of his own wrong and to allege, in his defense and to defeat a clear right, a nonperformance by the servant, which has proceeded from his own unlawful act, especially, when he at the same time insists that the servant should have obtained other em- ployment in order to reduce the damages. We have held that a *S'eo. 3 a.] relative rights. 553 party to a broken contract, who is unable to fulfill it by reason of the wrongful act of the other party, may recover for profits lost as well as gains prevented, if they are reasonably certain, such as those to be received from outstanding contracts for the sale of goods at a fixed price. Winston C, :\r, Co. v. AV. T. Co.. 141 X. C. 284, 53 S. E. 885; Johnson v. Railroad Co., 140 N. C. 574, 53 S. E. 362. And yet, in that class of cases, the service contracted for was not fully performed. So here the employe, by no fault of his own. loses his wages which are fixed by the contract, and their amount should be the true measure of his damages under the ordinary rule obtaining in the case of other contracts. He could not re- cover these damages before the §xpiration of his term because of the other rule that the master is entitled to diminish them by the amount he may or could have received from other employment which cannot be determined until the full period is at an end. Before that time the amount would be speculative. But, at the end of the term, there is no sound reason why he should not be en- titled prima facie to the full amount of wages, unless we make his condition worse than it would have been if the contract had not been broken by the master. It would be an aggravation of the latter 's wrong, if we hold that he may profit by it, and it would further present the temptation to break such contracts. Every dictate of reason and right requires that the rule should stand, even if the original reason assigned for it must fail. We may discard the reason as illogical, but not the rule, which is necessary to do justice and to promote fair dealing. The doctrine, as we have stated it, has been accepted by this court, as the authorities we have cited show, and we believe that it is sustained by the best- considered eases in other jurisdictions. In 20 A. & E. Ene. p. 37, it is said : ' ' Where the action is brought subsequent to the expira- tion of the term of employment, the decisions are practically unani- mous to the effect that the measure of damages is prima facie the wages for the unexpired portion of the term, this amount to be diminished by such sums as the servant has earned or might have earned by a reasonable effort to obtain other employment iij the same line of business." Wilkinson v. Black, 80 Ala. 329; Mc- Mullan V. Dickinson Co. (Minn.), 62 N. W. 120, 27 L. R. A. 409, 51 Am. St. Rep. 511 ; Hale on Damages, 67. Numerous cases are collected in the notes to be found in 20 A. & E. p. 37, and we refer to them without any particular enumeration here. In Pierce v. T. C. I. & R. Co., 173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591, the court applying the rule that in an action for breach of contract the amount which would have been received if the contract had been kept is the measure of damages if it is broken, held that the servant is entitled to receive the full amount of wages, subject to proper deductions, even when the suit was brought for the breach prior to the expiration of the full period of service. When there is a breach of the contract by the master a liability arises out of his implied undertaking to indemnify the servant against all loss resulting from his wrong, and this indemnity may accrue to the 554 RELATIVE RIGHTS. |"67t. 6. servant by installments and is continuing in its nature. ^MeMullan V. Dickinson Co. (Minn.), 62 N. W. 120, 27 L. E. A. 409, 51 Am. St. Kep. 511. The fact that the plaintiff sued and recovered judgment for the second installment is no bar to this suit as to the one remaining, or the last, installment, for the latter was not then due, and that judgment settled nothing except as to the sec- ond and third months' wages which were then due and unpaid. It would be strange, indeed, if the plaintiff could be barred by that judgment when at the time it was obtained he could not have sued for the last installment. The law is the other \vay. It has been so expresslj' decided. Armfield v. Nash, 31 iliss. 361 ; Isaacs V. Davies, 68 Ga. 169 ; La Cour«ier v. Russell. 82 Wis. 265. 5- N. "W. 176; Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8. The principle results from the right to sue as the installments become clue. Jlarkham v. Markham, supra. This disposes of the first and second prayers for instructions. The instruction requested in the third prayer was properly re- fused, as the duty of the employe to seek other employment could be considered only in diminution of damages. He might not have been able to get employment if he had made proper effort, or not as good wages. "A recovery, of course, cannot be entirely de- feated by showing that the servant obtained or could have ob- tained other employment ; but it is always competent for the mas- ter to show these facts in mitigation of damages ; the burden of proof in all cases being upon him." 20 A. & E. Enc. p. 37. Plaintiff was entitled, at least, to nominal damages for the breach. Id. note 3. The court committed an error in its charge to the jury upon the fourth issue, as the suit before the justice constituted a bar to thi- recovery of the third installment of wages, which under the errone- ous instruction was included in the verdict and became afterwards a part of the judgment. There must be a new trial as to the fourth issue, unless the plaintiff thinks he will be unable to show a state of facts different from those which now appear in respect to the actual time of issuing the summons in the former suit, and agree-; before the opinion is certified to the court below to remit thi> amount of the third installment, in which case the judgment will be reduced accordingly, and, as thus modified, it will be affirmed, and so certified. New trial. If the wages be payable in installments and the servant be -wrong- fully discharged, or quit for justifiable cause, before the expiration of his term of employment, the servant may recover on each installment as it matures. McMullan v. Dickinson, 62 N. W. 120, 27 L. R. A. 409; which is directly contrary to the ruling in Maryland, Olmstead v. Bach & Son, 27 Atl. 501, 22 L. R. A. 74. See Mordecai's L.' L. 128-131, for the doc- trines announced in the principal case. The rule as to constructive serv- ice is this: The servant whd is wrongfully discharged, or who quits for proper cause, must exercise reasonable diligence in seeking employment of not lower grade, and his recovery will be diminished by the amount he did so earn or might have earned. The burden is on the master to show what was or could have been thus earned by the servant. Hassard- Src. 3 a.] relative rights. _ oo;) Short V. Hardison, 114 N. C. 482, 19 S. E. 728; same case, 117 N. C. 60, 65 23 S. E. 96; Oldham v. Kerchner, 81 N. C. at pp. 432-433; Mordecai's L. L. 125, 128-131; Maynard v. R. W. Corset Co., 200 Mass. 1, 6, 85 N. E. 877, 879, which last case says: "Where one is under contract for per- sonal service, and is discharged, it becomes his duty to dispose of his time in a reasonable way, so as to obtain as large compensation as pos- sible, and to use honest, earnest, and intelligent efforts to this end. He cannot voluntarily remain idle and expect to recover compensation stipu- lated in the contract from the other party. Olds v. Mapes-Reeve C. Co.. 177 Mass. 41, 58 N. E. 478; Ransom v. Boston, 192 Mass. 299, 78 N. E. 481; same case, 196 Mass. 248, 81 N. E. 998. The amount of the damages is to be determined by the wages which he would have earned under the contract, less what he did in fact earn, or in the exercise of proper dili- gence might have earned, in another employment. Cutter v. Gillette, 163 Mass. 95, 39 N. E. 1010. It seems to be the generally accepted rule that the burden of proof is upon the defendant [master] to show that the plaintiff found, or, by the exercise of proper industry in the search, could have procured other employment of some kind reasonably adapted to his abilities, and that in the absence of such proof the plaintiff is en- titled to recover the salary fixed by the contract. Milage v. Woodward, 186 N. Y. 252, 78 N. E. 873; Porter v. Burkett, 65 Tex. 383; Bennett v. Morton, 46 Minn. 113, 48 N. W. 678; Beisel v. Vermillion F. El. Co., 102 Minn. 229, 113 N. W. 575; Hendrickson v. Anderson, 50 N. C. 246; Troy Co. V. Logan, 96 Ala. 619, 12 So. 712; Pitzpatrick S. B. G. Co. v. McLaney, 153 Ala. 586, 44 So. 1023; King v. Steiren, 44 Penn. St. 99; Barker v. K. Ins. Co., 24 Wis. 630, 638; Hamilton v. Love, 152 Ind. 641, 53 N. E. 181, 54 N. E. 437; Mathesius v. B. H. R. R., 96 Fed. 792; Winkler v. Ra- cine W. & C. Co., 99 Wis. 184, 74 N. W. 793; Larkin v. Hecksher, 22 Vroom, 133, 16 Atl. 703; Rosenberger v. P. C. Ry., Ill Cal. 313, 43 Pac. 963; Roberts v. Crowley, 83 Ga. 429, 7 S. E. 740; Realty Co. v. Ellis, 4 Ga. App. 402, 61 S. B. 832; Puller v. Little, 61 111. 21; Saxonia M. & R. Co. V. Cook, 7 Colo. 569, 4 Pac. 1111; Chisholm v. P. B. Assur. Co., 112 Mich. 50, 55, 70 N. W. 415; Boland v. Glendale Q. Co., 127 Mo. 520, 30 S. W. 151; Chamberlain v. Morgan, 68 Penn. St. 168; Latimer v. York C. Mills, 66 S. C. 135, 44 S. E. 559." See further, as to actions on installments, Farnham v. Hay, 3 Black- ford, 167, inserted at ch. 8, sec. 2, post, and notes to that case. See 8 L. R. A. (N. S.) 1004, and note (master's waiver of right to discharge and his condonation of breach of duty by servant); 6 lb. 49, 5 lb. 439, 579, and elaborate notes (servant's remedy for wrongful discharge) ; 6 lb. 82, and note (measure of damages for wrongful discharge); 5 lb. 439, 6 lb. 94, and notes (servant's duty to seek employment). See "Mas- ter and Servant," Century Dig. §§ 41-61; Decennial and Am. Dig. Key No. Series §§ 34-46. CHAMBLEE v. BAKER, ^5 N. C. 98, 100-103. 1886. Entire Contracts. Remedy. [Action on a quantum meruit for services rendered. Judgment against defendant, and he appealed. Affirmed. Plaintiff was hired in February to work on defendant's farm for the term ending with the current year. It was agreed, at the trial, that the contract was an entire contract. By the terms of this contract, plaintiff was to be paid "ten dollars per month." Plaintiff quit the defendant's service, without legal excuse, before the end of his term of employment. The defendant suffered no loss by the plaintiff's quitting. The value of plaintiff's services, for the time he worked for defendant, was seventy dollars. He had been paid twenty dollars, and he sued for the balance due him.] 556 RELATIVE RIGHTS. [CJl. 6. Smith, C. J. . The appellant insists, that, the contract being special for labor for the entire residue of the year, though the compensation is measured by months, the plaintiff, having left before the expiration of the time "without legal excuse," cannot recover for the partial service performed. The general rule is thus laid down, and is sustained by numer- ous ad.judications" cited in the American Editors' Notes to the eass of Cutter V. Powell, 2 Smith's Leading Cases, 1 : "But if there has been an entire executory contract, and the plaintiff has performed a part of it, and then wilfully refuses, without legal excuse, and against the defendant's consent, to perform the rest, he can re- cover nothing, either in general or special assumpsit." The same rule has been repeatedly recognized and acted on in this court, the more recent cases, wherein references to others may be found, be- ing Thigpen v. Leigh, 93 N. C. H, and Lawrence v. Hester, lb. 79. Indeed, so stringent was the former practice, that in an action upon a special contract to pay for services to be rendered, and which were rendered, no evidence in defense or to reduce the re- covery, was admissible to prove inattention, neglect, wasted time or other misconduct of the plaintiff, and dereliction in the under- taken duty, and the defendant was driven to a separate action for redress. Hobbs v. Riddick, 50 N. C. 80. It is otherwise under the present system, and the entire dispute, involving opposing de- mands, is now adjusted in a single suit. This is some relaxation of the doctrine regarding special contracts, and the enforcement of the obligations they create. The manifest injustice, upon such technical grounds, of refus- ing all compensation for work done and not completed, or for goods supplied short of the stipulated quantity, and of allowing the party to appropriate them to his own use, without paying any- thing, has been often felt and expressed by the judges, and a mode sought by which the wrong could be remedied. The mischief is ad- verted to by this court, in Gorman v. Bellamy, 82 N. C. 496, when referring to the case of Dumott v. Jones, 23 How. (U. S.) 220, and Monroe v. Philips, 8 Ellis and Black, 739, this language is used : "The inclination of the courts, is to relax the stringent rule of the common law, which allows no recovery upon a special unper- formed contract, nor for the value of the work done, because the special excludes an implied contract to pay. In such case, if the party has derived any benetit from the labor done, it would be unjust to allow him to retain it without paying anything. Ac- cordingly, restrictions are imposed upon the general rule, and it is confined to contracts entire and indivisible, and when, by the nature of the agreement or by express provision, nothing is .to be paid till all is performed." If, by the terms of the agreement, certain sums are due on per- formance of certain parts of the work, thus severing the considera- tion, separate actions are maintainable for each. And in the con- struction of the agreement, the court will be guided by a respect to general convenience and equity, and the reasonableness of the Sec. 3 &.] RELATIVE EIGHTS. 557 particular case. Thus, the modified ruk' has been declared to be, that though the consideration and contract be entire by the appar- ent terms of the agreement, yet such may be the circumstances as to entitle the plaintiff to a ratable compensation for part perform- ance. So, the inference [is] , that compensation is payable in in- stallments at certain periods, as weekly or monthly, according to service; unless there is a clear and distinct understanding that compensation, as a unity, is demandable only at the expiration of the full period of service. These views are presented in the able discussion in the note from which we have extracted a part, and rest upon a series of adjudications cited. In our case, the plaintiff's wages are measured by monthly sums, and for two months of his work he has received full compensation. This indicates an understandiiig 'between the parties, that the wages were to be paid as the work progressed and as the plaintiff 's necessities may have required, and that he should not be delayed until the end of the year. The defendant loses nothing by the plaintiff's leaving, nor is it stated that the departure was against the defendant's will. Under these circumstances, and to avoid manifest injustice, we hold the ruling to be right, and that there is no error. The judgment must be affirmed. For further discussion of tlie doctrine of Entire Contracts, see 5 L. R. A. (N. S.) 524, and elaborate note; 3 Page on Cont. sec. 1487; Mcintosh on Cont. 543; Mordecal's L. L. 118, 119; Tussey v. Owen, 139 N. C. 457, 52 S. E, 128; Cranmer v. Graham, 1 Blackf. 406, inserted at ch. 8, sec. 3, (a). See "Master and Servant," Century Dig. §§ 90-102; Decennial and Am. Dig. Key No. Series § 73. (h) Master's Liability to Servant in Actions Ex Delicto. HOBBS V. RAILROAD, 107 N. C. 1, 12 S. E. 124. 1890. Fellow-Servant Doctrine. History. The Rtile and its Limitations or Exceptions. [Action for damages arising from the alleged negligence of the de- fendant. The fellow-servant doctrine was relied on as a defense. Judg- ment against defendant, overruling its demurrer, and defendant ap- pealed. Reversed. The complaint alleged that the plaintiff, a fireman, was injured by the negligence of the engineer, under whose direction and control he was placed in defendant's service; that the engineer negligently ordered him to go out upon the engine and oil certain machinery while the engine was in swift motion; that thereafter the engineer, while the plaintiff was out on the engine, negligently stopped it so that the plaintiff was in- jured thereby. The defendant demurred, on the ground that the com- plaint did not state facts sufficient to constitute a cause of action.] CijAek, J. In this ease, as in Hagins v. Railroad Co.. 106 N. C. 537, 11 S. E. Rep. 590, it is set out in the complaint that the in- jury to the plaintiff, who was a fireman, as in that case a brake- man, was caused by the negligence of the engineer. This case must be governed by that. While it is not always easy to draw the •j-j8 relative rights. [Ch. 6. line between what constitutes a fellow-servant and what a superior employe, or vice-principal, the relation between a brakeman or fireman and the locomotive engineer is well settled to be that of fellow-servants. It was so held in the first case on the subject (Murray v. Railroad Co., 1 Mcilul. 385), and has been repeatedly and uniformly so ruled since (Jordan v. Wells, 3 Woods, 527, Fed. Cas. No. 7,525; Bull v. Railroad Co., 67 Ala. 206; Railroad V. Handman, 13 Lea, 423; Henry v. Railroad Co., 49 Mich. 495, 13 N. W. Rep. 832; Paulmier v. Railroad Co., 34 N. J. Law, 151 ; Railroad Co. v. Elliott, 1 Cold. 611 ; Jones v. Yeager, 2 Dill. 64, Fed. Cas. No 7,510; Caldwell v. Brown, 53 Pa. St. 453; Railroad Co. V. Rush, 15 Lea, 145; Railroad Co. v. Waller, 48 Ala. 459; Howard v. Railroad Co., 26 Fed. Rep. 837 ; Railroad Co. v. Blohn, 73 Tex. 637, 11 S. W. Rep. 867, 1889.) And there are many others. In Dobbin v. Railroad, 81 N. C. 446, it is held that, to make the company liable, the negligent employe must be some- thing more than a mere foreman over other hands ; and in Kirk v. Railroad Co., 94 N. C. 625, Smith, C. J., says: "The operation of the principle [of non-liability of master for negligence of fellow- servant] is not altered by the fact that the servant chargeable with negligence is a servant of superior authority, whose lawful direc- tions the other is bound to obey." The same view is held in Webb V. Railroad Co., 97 N. C. 387, 2 S. E. Rep. 440, by the present chief justice, although in the latter ease the negligent servant had au- thority to employ and dismiss the injured employe. The j)rinciple above quoted from Kirk v. Railroad Co. is fully sustained bv Whart. Neg. § 229 ; Wood, Mast. & S. § 437 ; Cooley, Torts, pp. 543, 544 ; Shear. & R. Neg. § 100 ; Pierce, R. R. 366 ; Wright v. Rail- road Co., 25 N. Y. 546, and cases cited. It is not necessary to draw the line in this case, as the relationship of the parties here falls clearly on the side of their being fellow-servants. There is no allegation here that the company exposed the plaintiff to unusual and unnecessary risks, or that, knowing that the engineer was unfit or incapable, they retained him in their service. Indeed, the services appear to have been those incident to the scope of plain- tiff's employment as fireman, and the injury was caused by negli- gence of the engineer, his fellow-servant. The allegations in the complaint that, "as such fireman, the plaintiff was under the di- rection and control of the locomotive engineer," and that "engine, with train of freight ears attached, were managed, controlled, and conducted by said engineer, and other agents and servants of de- fendant company," in no wise distinguish the case from the ordi- nary one of fireman find engin(H'r. The doctrine that a master is not liable to an employe for the negligence of a co-employe rests upon the principle that a man, as a rule, is no more liable for the wrongs done by another than he is for his debts. There are some exceptions to the rule, among them, for instance, that passengers injured by the negligence of servants of a common carrier can recover damages of the carrier, because of the breach of the con- tract of safe carriage, and so where a stranger is injured by the .Sec. 3 b.] I RELATIVE RIGHTS. 559 acts of a servant within the scope of his employment. This last is upon the ground of public policy, and also because, as to the ■stranger, the servant is the agent of the master. An effort to make a further exception so as to make the common master liable to a servant for an in.iury done him by the negligence of a fellow- servant first came before the courts in England, in 1837. in the case of Priestley v. Fowler, :■! ]\Iees. & "W. 1, in which Lord Abingbr (Sir James Scarlett), in a very able opinion, pointed out the inconveniences, and often the great injustice, which would be produced if the master were held responsible. The principle laid ■down was that a servant, on entering upon his employment, con- tracted with a view to the ordinary risks of such employment ; and further that it was public policy that it should be so. since, if, for injury to a servant by negligence of his fellow, he could not hold the master liable, servants would be prompted by their own in- terests to observe want of skill or care on the part of their fellows, and promptly report the same. This principle was also laid down, without any knowledge of the Westminster decision, by the supreme court of South Carolina in Murray v. Railroad Co., 1 McMul. 385 (1841), and applied to railroad corporations (the case was that of a fireman injured by the negligence of an en- gineer), and followed by the able opinion of Sh.vw, C. J., in Far- well V. Railroad Co., 4 Mete. (Mass.) 49. It was applied to the railroads in England, in 1850, in the ease of Hutchinson v. Rail- road Co., 5 Bxch. 343. Since then the same rviling has been made in a lonsr line of decisions so that Gray, J., in Randall v. Rail- road Co.T 109 TJ. S. 478, 3 Sup. Ct. Rep. 322, well says that "the rule of law is now firmly established that one who enters the serv- ice of another takes upon himself the ordinary risks of the negli- gent acts of his fellow-servants, in the course of his employment." There are modifications where the fellow servant is acting as prin- cipal, or alter ego, also when the master furnishes machinery which he knows, or, with care, ought to have known, to be de- fective, or retains an unfit or incompetent servant, who does the injury, or exposes the servant to unusual risks, not contemplated by the scope of his employment. But the present case, as we have seen, does not come within any of these. Notwithstanding that the general rule of nonliability of the master is so well settled, it is still frequently urged that, as to railroads, there should be an exception made. But whatever may be argued in favor of or against the propriety of such exception, the courts have not felt authorized to make it. The change, wherever it has been made, has come by legislative enactment. In Georgia, the common law has been repealed by sections 2083 and 3036 of the Code, which provide that when an employe of any railroad company is in- jured by another employe, without any default or negligence on his own part, the company is liable for damages, as to passengers, for injuries caused by want of due care and diligence. Similar provisions have been adopted in several other states (McKinney, Fellow-Servants, §§ 100-109), and in their courts are to be found 560 RELATIVE EIGHTS. [Ch. 6. the decisions ivhicli are in conflict with ours. Wherever the com- mon law has remained, as in this state, unchanged by statute, the holdings of the courts are in substantial conformity to ours. The common-la«- rule has also been very much modified in England by statutory enactment (the Emploj^ers' Liability Act of 1880, commonly known as the "Gladstone Act") ; and that fact must be considered with reference to all the later English decisions. The demurrer should have been sustained. Error. See "Master and Servant," Century Dig. §§ 422-514, 567-573; Decennial and Am. Dig. Key No. Series §§ 186-198, 216. RAILROAD CO. v. KEARY, 3 Ohio St. 20.2, 212. 1854. The Fellow-Servant Doctrine Criticised. Ranney. J. [After referring to a number of cases which sus- tain the dectrinc] We entertain the highest respect for these courts, and their undivided opinions upon any question arising upon principles of the common law, would cause us to hestitate long before we differed from them. But even upon such a ques- tion, we should be compelled to follow the dictates of our own understandings ; and the more especially should we feel at perfect liberty to do so, when they did not profess to base their decisions upon any settled principle of law, but undertook to declare a new rule for their action. If such a rule did not seem to us consistent with the analogies of the law, and calculated to promote justice, we should feel bound to reject it. Upon this question, we find no occasion to depart from established principles. It lies upon those who deny the defendant in error the benefit of these principles, to show some good reason for the exclusion. We have carefully ex- amined all these eases, and can find in none of them any such reason, or any denial of the principle upon which we base this de- cision. AYhile we cannot approve all that is said in some of them, no one of them has determined the question now before us. Pi'iest- ley V. Fowler was decided in 1837, and is the first case to be found in the English books where the limitation of the liability of the master is even hinted at. That action was brought by a serv- ant against his master, for the negligence of another servant in overloading a van, by which the plaintiff was injured. It was held that the action could not be maintained. Chief Baron Abinger, in delivering the opinion, says: "There is no precedent for the action by a servant against a master. AVe are therefore to decide the question upon general principles; and in doing so we are at liberty to look at the consequences of a decision one way or the other." He accordingly looked at the consequences, with a view to the actual state of English society, and concluded they would carry him to an "alarming extent." After referring to several instances where the liability of the master would attach, he concludes that "the inconvenience, not to say absurdity of ISCC. 3 h.] RELATIVE RIGHTS. 561 these consequences," afford a sufficient argument against the ac- tion. It can admit of very little doubt that holding the relation of master and servant to exist between the buyer and seller of a coach or a harness (instances put by his lordship) would, indeed, be both inconvenient and absurd. It is unnecessary to examine, at any length, the other cases decided in that court. Upon a similar state of facts they each follow and affirm the doctrine of Priest- ley V. Fowler. As these cases loere decided upon no settled principle of the common laiv, hiit upon general principles, with a vieiv to conse- quences, 1 may be permitted to refer to the opinion of another court, equally learned and able, sitting in the same kingdom and subject to review, if I am not mistaken, in the same ultimate tri- bunal. In the case of Dixon v. Ranken, 1 Am. Railway Cas. 569, determined by the highest court in Scotland, as late as 1852, the doctrines of the English cases were repudiated, and an exactly contrary decision made. The lord justice clerk, after referring to the English decisions, proceeds to say: "The master's primary obligation in every contract of service, in which his workmen are employed in a hazardous and dangerous occupation for his in- terest and profit, is to provide for and attend to the safety of the men. That is his first and leading obligation, paramount to that even of paying for their labor. This obligation includes the duty of furnishing good and sufficient machinery and apparatus, and of keeping the same in good condition, and the more rude and cheap the machinery, and the more liable on that account to cause injury, the greater his obligation to make up for its de- fects by the attention necessary to prevent such injurj\ In his obligation is included, as he cannot do everything himself, the duty to have all acts by others whom he employs done properly and carefully in order to avoid risk. This obligation is not less than the obligation to provide for the safety of the lives of his servants by fit machinery. The other servants are employed by him to do acts which, of course, he cannot do himself, but they are acting for him, and instead of himself, as in his hands. For their careful and cautious attention to duty, and for their want of vigil- ance, and for their neglect of precaution by which danger to life may be caused, he is just as much responsible as he would be for such misconduct on his own part if he were actually working or present. And this particularly holds as to the person he intrusts with the direction and control over any of his workmen, and who represents him in such a matter. ' ' And he adds : ' ' There have been many cases in Scotland at all periods, and dviringthe last fifty years a very large number, which proceeded on this as a fixed principle of the law as to the contract of service." Lord Cockburn, after stating that "the plea that the master is not liable, rests solely on the authority of two or three very recent decisions of English courts," says: "if this be the law of England, I speak of it with all due respect. But it is most certainly not the law of Scotland. I defy any industry to produce a single decision, Remedies — 35. •562 RELATIVE RIGHTS. \ Ch. 6. or dictum, or institutional indication, or any trace of any aii- - thority to this effect, or of this tendency, from the whole range of our law. If such an idea exists in our system, it has, as yet, lurked undetected. It has never been condemned, because it has never been stated." After alluding to the fact that the rule had been pressed upon the court, not only on account of the weight of English authority, but for its own inherent justice, he proceeds : "This last recommendation fails with me, because I think the jus- tice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable to legal rea- son. I can conceive some reasonings for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur danger on his ac- count, and certainly are not understood, by our law, to come un- der any engagement to take these risks on themselves." Such is the diversity of opinion, not only as to the existence of the doctrine, but also as to its justice and propriety, found to ob- tain in two of the learned courts in G-reat Britain ; both uncon- trolled by any statutory regulation, or other consideration pecul- iar to the system of law administered by either ; but each deter- mining the obligation arising from a relation, founded upon con- tract, which must be the same in England and Scotland. . . . "While the principle of respondeat superior is as old as the law it- self, it is everywhere admitted that no such exception to its opera- tion as is now contended for, was ever asserted until the case of Priestley v. Fowler was decided. . . . Warden, J. . . By the case of Priestley v. Fowler, 3 M. & W. ], and the American cases which have followed it, the maxim to which I have referred [qui facit per alium, facit per sel is so restricted as to deny the liability of a master, in any case, for the negligence of one of his servants whereby another sustained in- jury. This court, as I understand the effect of the decision just pronounced, refuses so to qualify the rule, hut does confine the Uabiliiy of one ivho is the employer of several persons, for the negligence of one of his employes whereby another is hurt, to cases ill which he who was damaged urns suhordinaie to the negli- gent agent or servant. I have been unable to satisfy myself with either restriction. T think none such is made by law, or demanded by public policy. That in England, a menial servant could not have an action against his master for the negligence of a fellow-servant, of the like state and condition with himself, does not strike me as a novel view of the law ; though, so far as I know, it had never been taken before the days of Lord Abinger. The reasoning of that learned, but somewhat eccentric judge, does not, indeed, very strongly lead my mind toward any such conclusion; for his whole opinion is but one of the many instances of how little some of the most shining talents of the advocate appear to prepare their possessor Sec. 3 6.] RELATIVE RIGHTS. 563 for the office of the judge. But a view of the English legal an'l social system reveals some apparently valid reasons for denying a right of action by a domestic servant against his master for negli- gence, whether of the master or of another servant. Were such an action brought in an English court, there would be vividly present to the judge all the features of that division and subdivi- sion of the English people into classes, which has survived every shock given to the constitution, and resisted every reform at- tempted in the state. Prom the highest of the degrees of nobility and honor derived from the king as their fountain, there is a long descent through the ranks of dignity and worship, and even through the condition and esteem of tradesmen, artificers, and laborers, down to the lowest estate held by the menial servant. Putting aside for the present, what suggestions of policy would arise out of the intimate and familiar character of the relation- ship between master and servant, I should not be astonished be- yond measure to find that the contempt in which the class of me- nial servants was anciently held, had so continued down to 1837, that even then the assertion of a claim by an individual of that class, founded on the negligence of his master, would have en- countered some opposition from that reverence for rank, which must have entered into the constitution of any English tribunal whatever. Descendants of the servi, the villeins, and bom thralls, who led the hard life of servitude throughout the governmental changes of ancient times in England, menial servants had a very poor estimate in legal regard. Their condition is treated of by Blackstone in immediate connection with that of slaves and vil- leins. They were not left to their own volition as to serving or not serving. All single men, between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, were compellable, by two justices, to go out to service, in husbandry or certain specific trades, for the promotion of honest industry. 1 Elk. 425, 426. The contract of hiring, where no limitation was expressed, was construed with reference to a supposed duty of ths master, to protect his dependents throughout the changes of the year, whether there was work to be done or not. Ibid. No mas- ter could put away his servant, or servant leave his master, after being so retained, either before, or at the end of his term, without a quarter's Maming, unless upon reasonable cause, to be allowed by a justice of the peace, although they might part by consent, or make a special bargain. Ibid. Such a servant had no clear right of action for a moderate correction by his master — in some in- stances, that exercise of authority was clearly lawful. The mas- ter could justify a battery in defense of his servant, and the serv- ant the like in defense of his master. In these respects, and in the enforcement of strict obedience and outward reverence, the master almost stood in loco parentis. In a word, the menial serv- ant was so far a member of the household, that , Blackstone evi- dently looks upon his master as the paterfamilias even as to him. 564 RELATIVE RIGHTS. [Ch. 6. 1 Blk. 431. We begin now to appreciate the ludicrous alarm of Lord Abinger, at what he supposes to be some of the consequencej of allowing a servant to sue his master for the negligence of a fellow-servant. We can discover whose interests he has in mind, and what is the source of his anxiety, when he says : ' ' The master, for example, would be liable to the servant for the negligence of the chambermaid in putting him into a damp bed, " etc. . . . In any view I take of this question, the right of the plaintiff must be as broad as I have stated. I disagree to the restriction of that right, because I believe that there can be found to warrant such limitation, no rule of law, no maxim of any system of juris- prudence whatever, and no consideration of public policy. I think it is a novelty in the law, resting on a doubtful foundation of justice, and making a discord in the system into which it has been forced. On the other hand, a wise and salutary maxim seems to establish the right as I believe it to exist. And if that right has not been pronounced by the ancient oracles of the law, the common sense and common humanity of such as tempt men into hazardous employments, constantly recognize the answering duty, and es- tablish precedents of its obligation none the less valuable becaus.? they do not enter into the books of reports. See "Master and Servant," Century Dig. §§ 318-534; Decennial and Am. Dig. Key No. Series §§ 159-201. HANCOCK V. RAILROAD, 124 N. C. 222, 32 S. E. 679. 1899. The "Fellow-Servant Act." [Action for damages caused by negligence of a fellow-servant. Ver- dict against defendant, who moved in arrest of judgment. Motion over- ruled. Judgment against defendant and it appealed. Affirmed. The case is inserted because it passes upon the Fellow-Servant Act, Revisai, sec. 2646.] Clark, J. The decision of this case depends upon chapter 5G, Priv. Laws 1897, — "An act to prescribe the liabilities of railroads in certain cases." This statute, commonly known as the "Fellow- Servant Act," was ratitied on the 23d day of February, 1897, and provides : "Section 1. That any servant or employe of any railroad com- pany operating in this state, who shall suffer injury to his person, or the personal representative of any such servant or employe, who shall have suffered death in the course of his services or em- ployment with said company by the negligence, carelessness or incompetency of any other servant, employe or agent of the com- pany, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company. "Sec. 2. That any contract or agreement, expressed or implied, made by an employe of said company to waive the benefit of the aforesaid section shall be null and void." Sec. 3 b.] RELATIVE RIGHTS. 565 The plaintiff was injured in the service of the defendant since the ratification of this act. The defendant contends that the in- jury vpas caused by the negligence of a fellow-servant of the plain- tiff, to wit, a brakeman on the passenger train, in leaving the switch open, whereby the hand car was derailed. Its counsel cites, inter alia. Ponton v. Railroad Co., 51 N. C. 245; Pleasants v. Railroad Co., 121 N. C. 492, 28 S. E. 267, and Wright v. Railroad Co., 122 N. C. 852, 29 S. E. 100, which sustain the contention that, if the injury was thus caused, the action could not have been maintained at common law. The defendant excepts as to above statute, which the judge held confers a right of action in such case, because: "(1) It is a private act, and, as such, under sec- tion 264 of the Code of North Carolina, it should have been pleaded. (2) Whether this act is public or private, it is unconsti- tutional and void when applied, in a ease like this, to fellow-serv- ants of a 'railroad company operating in this state,' upon the ground that it 'undertakes to confer upon servants and employe.s of such companies separate and exclusive privileges from the rest of the community engaged in similar private employment, which are denied even to servants and employes of railroad construction companies and of street railroad and railroad bridge companies, and partnerships operating lumber and mining railroads, since its provisions are confined strictly to railroad companies,' and there- fore violates article 1, § 7, of the constitution of the state." As to the second ground of exception, nothing in this case re- quires us to pass upon the questions, which cannot arise upon the facts herein, whether the fellow-servant act applies to street rail- roads, partnerships operating lumber and mining railroads, rail- road construction companies, and railroad bridge companies, and whether the defendant can set up the defense of a knowledge of defective machinery by the plaintiff and assumption of risk. Be- yond controversy, the plaintiff was in the employment of "a rail- road company operating in this state" when injured. These matters may possibly come up for adjudication when the facts of some case present the question, but in the meantime "sufficient unto the day is the evil thereof. ' ' As to the other question learnedly argued in the brief, whether, under the fellow-servant statute, the defendant can plead contribu- tory negligence on the part of the servant injured, there can be no doubt. The statute goes no further than to remove the defense that the injury was sustained by the negligence of a fellow servant. The defendant does not take his own argument on this point seri- ousty; for, in fact, he sets up the plea of contributory negligence, and an issue thereon was submitted to the jury, and found in favor of the plaintiff. We see no ground for the defendant's contention that the act in question violates article 1, § 7, of the North Carolina constitu- tion, by "conferring exclusive privileges upon any set of men." The law exempting a master from liability to a servant for the 566 RELATIVE . RIGHTS. [Ch. 6. negligence of a fellow-servant is bj' judicial construction and of comparatively recent origin. Its history is traced in Hobbs v. Railroad Co., 107 N. C. 1, 12 S. E. 124. Its extent has been differ- ently outlined in different states by judicial construction, and in several states it has been restricted by legislative enactment so a? not to extend to employes of railroad companies, as has now been done in this state. As the original ground of the decision was that a servant knew the character for care of his fellow-servant, and entered service with a view to that risk, the courts them- selves might logically have long since modified the ruling not tO' extend to an employment like that of railroads, embracing many thousands of employes, and exposing its servants to peculiar risks. The fellow-servant act now in question applies to a well-defined class, and operates equally as to all within that class. Indeed, any act incorporating a company confers special privileges upon the stockholders, but not exclusive privileges, within the meaning of the constitution. We fail to see in this act any conferring of "ex- elusive privileges," within the language or intent of the constitu- tional provision in question (Broadfoot v. Town of Fayetteville, 121 N. C. 418, 28 S. E. 515) ; and similar fellow-servant acts, al- most in totidem verbis, in other states, have been held by the fed- eral supreme court to be not in conflict with the "equal protec- tion" clause of the fourteenth amendment. Our statute specifies "servants or employes of any railroad company operating in this state," etc. The Kansas statute (1 Gen. St. 1889, p. 415), which uses the words, "every railroad company organized and doing business in this state shall be liable." etc., was held valid in Rail- way Co. V. Mackey, 127 U. S. 205. 8 Sup. Ct. 1161 ; and the Iowa statute (Code 1873, § 1307), which uses the words, "every cor- poration operating a railroad shall be liable," etc., was sustained in Railway Co. v. Herrick. 127 U. S. 211, 8 Sup. Ct. 1176; and both eases have been very recentlv reviewed and reaffirmed iii Railroad Co. v. Mathews, 165 U. S.'l, 25, 17 Sup. Ct. 243,— all of which have been lately cited as authority by this court in Broad- foot V. Town of Payetteville, at page 422, 121 N. C, and page 516, 28 S. E. In another recent case (Railroad Co. v. Pontius, 157 IT. S. 209, 2]0, 15 Sup. Ct. 586), the federal supreme court, through Chief Justice Fuller, approving Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, has thus stated the ruling with ap- proval: "As to the objection that the law (the Kansas statute above cited) deprived railroad companies of the equal protection of the laws, and so infringed the fourteenth amendment, this court held that legislation which was special in its character was not necessarily within the constitutional inhibition, if the same rule was applied under the same circumstances and conditions; that the hazardous character of the business of operating a rail- road seemed to call for special legislation with respect to railroad corporations, having for its object the protection of their em- ployes as well as the safety of the public; that the business of other corporations was not subject to similar dangers to their em- »SVc. 3 b.] RELATIVE RIGHTS. 567 ployes; and that such legislation eould not be objected to on the ground of making an unjust discrimination, since it met a par- ticular necessity, and all railroad (corporations were, without dis- tinction, made subject to the same liability." The attack of the defendant's counsel upon the constitutionality of the fellow-serv- ant act has been delivered with force and ability, but we cannot perceive that the reasoning in the above decisions of our highest federal court is otherwise than sound. . In what is known as "The Ross Case," decided in 1884, 112 U. S. 377, 5 Sup. Ct. 184, the supreme court of the United States decided that all servants of a common master were not fellow-servants within the fellow- servant doctrine; but that where one servant was subordinate to an- other — under the authority of another — the common master was liable for injuries suffered by the subordinate in consequence of the negligence of the superior servant. This ruling was overturned in 1899, by the same court, in New England R. R. v. Conroy, 175 U, S. 323, 340-347, 20 Sup. Ct. 85. By the Act of June 11, 1906, 34 U. S. Stat. 232, common carriers en- gaged in interstate commerce were made liable to their employes re- gardless of the fellow-servant doctrine. This act was declared to be un- constitutional, in part, in "The Employers' Liability Cases," 207 V. S. 463, 28 Sup. Ct. 141. Thereupon by the Act of April 22, 1908, the statute was re-enacted in terms thought to meet the objections to its constitu- tionality. For the fellow-servant doctrine in general, see 26 Cyc. 1276. For the North Carolina law on the subject, see Mordecai's L. L. 140-154. See 17 L. R. A. (N. S.) 773, 1 lb. 288, 2 lb. 751, 10 lb. 1043, 20 lb. 322, 331, and notes (selection and retention of fellow-servants); 8 lb. 631, 13 lb. 1214, 20 lb. 39, 22 lb. 738, and notes (general doctrine); 1 lb. 696, 6 lb. 452, 12 lb. 1040, 15 lb. 479, 17 lb. 117, 18 lb. 478, and notes (the doctrine as af- fected by statutes) ; 1 lb. 682, 4 lb. 1161, 7 lb. 651, 13 lb. 1196, 16 lb. 146, 17 lb. 334, 20 lb. 354, 434, 1180, 21 lb. 601, and notes (who are fellow- servants) ; 1 lb. 669, 670, 8 lb, 798, 10 lb. 1103, 11 lb. 840, 15 lb. 439, 17 lb. 542, 568, 18 lb. 279, and notes (for what acts of fellow-servants the master is liable). If the master's negligence be the proximate cause of the injury, the concurring negligence of a fellow-servant is no defense. H. & B. Car Co. v. Przezdziankowski, 170 Ind. 1, 8, 83 N. E. 626, citing 3 Ell. on R. R. (2d ed.), s,. 1306; see also 2 L. R. A. (N. S.) 647, 4 lb. 516, and notes, for further discussion of the subject of concurring negligence. See "Master and Servant," Century Dig. §§ 354-374; Decen- nial and Am. Dig. Key No. Series §§ 178-184. YOUNG V. CONSTRUCTION CO., 109 N. C. 618, 14 S. B. 58. 1891. Machinery, etc. Master's Liability. TAction for damages sustained by a servant in using an Implement fur- nished by the master, which was alleged to be improper and unsafe. Verdict and judgment against defendant, who appealed. Reversed. Plaintiff was injured by the slipping of a green round pole substituted for a jack in raising cross-ties.] Mereimon, C. J. The complaint alleges that at the time the plaintiff sustained the injuries complained of the defendant's la- borers (he being one of them) were engaged in "raising cross-ties, etc., and leveling the roadbed." etc. Now, in view of the nature of such employment, and the pole used as a lever in the connec- 568 RELATIVE BIGHTS. [Ch. 6. tion as described in the complaint, and accepting all the evidence in respect to its use as true, we think the court ought to have told the jury that the pole was an appropriate implement, and not dan- gerous for the purposes to which it was applied. All the evidence pertinent went to show that the laborers were engaged in raising the track of the road, and that they used the pole to prize it up, placing the end of it under a cross-tie. In its nature the applica- tion and use of the pole were simple and appropriate, and the evi- dence went to prove the same fact. That ' ' jacks ' ' or other instru- mentalities might have been employed effectively to raise the track did not make it negligent to employ the lever, — another ap- propriate means. The court ought not, therefore, to have modi- fled, as it did, the instruction the defendant requested it to give the jury. The third issue submitted to the jury had reference to whether or not the plaintiff had knowledge of the nature and use of the pole as a lever. As to this the court ' ' told the jury that he knew of no witness who gave direct testimony tending to show that the plaintiff knew, or had good reason to know, of the nature and character of the implement used by him and consent to use the same, and called upon defendant's counsel to point out such evidence. ' ' "We think there was such evidence, and that what the court said in that respect may have misled the jury to the preju- dice of the defendant. They saw that the court was of opinion that there was not such evidence ; and, after the colloquy with counsel, they saw that the court was still not well satisfied as to its char- acter. This, no doubt, impressed the jury. There was certainly evidence that the plaintiff was present. The pole was there plainly to be seen, as was also its purpose and application. He was di- rected to join in its use, and he did so. Surely these facts consti- tuted some evidence tending to prove that he knew of the charac- ter of the pole he aided in using, and that he consented to help in the use of the same. The pole and its use were simple, easy to be seen, and understood at a glance. It may be, however, that the plaintiff did not observe them with scrutiny, though there was evidence that he and the other laborers were cautioned to be care- ful. But, be this is it may, there was evidence appropriate and pertinent to go to the jury without such possible prejudice as to its character and sufficiency. There is error, and without advert- ing to other exceptions we are of opinion that the defendant is en- titled to a new trial, and so adjudge. To that end let this opinion be certified to the superior court. It is so ordered. See "Master and Servant," Century Dig. §§ 171-263, 1010-1031; Decen- nial and Am. Dig. Key No. Series §§ 101-129, 286. AVERY V. LUMBER CO., 146 N. C. 592, 595, 60 S. E. 646. 1908. Machinery, etc. Master's Liability. Servant's Duty. [Action for damages sustained by a servant in using an implement fur- nished by the master, which was alleged to be improper and unsafe. Verdict and judgment against defendant, who appealed. Affirmed. 8ec. 3 &.] RELATIVE EIGHTS. 569 Plaintiff was an ordinary green hand, with no knowledge of machinery. He was ordered to oil a machine called an edger, and in doing so his arm was cut off by the machine. The only implement that plaintiff saw about the machine, for oiling it, was a bottle. There should have been a "squirt can" for such work, as to use a bottle was dangerous, especially if used by one not accustomed to oiling such a machine.] Brown, J. . . The specific negligence of which plaintiff complains is that the defendant failed to furnish a safe and suit- able appliance with which to oil the edger, and one in general use for such purpose. Phillips v. Iron Works, 146 N. C. 217, 59 S. E. 660. It has become elementary in the doctrine of negligence that the master owes a duty, which he cannot safely neglect, to furnish proper tools and appliances to his .servant. Shaw v. Mfg. Co., 146 N. C. 235, 59 S. E. 676; Phillips v. Iron Wroks, supra; Ward v. Mfg. Co., 123 N. C. 248, 31 S. E. 495, While the evidence may be conflicting, there is abundant proof to go to the jury that the defendant failed to furnish the necessary oil squirt can in common use for oiling such machinery, and that such negligence caused the injury to plaintiff. We do not mean to hold that it was defendant's duty to have squirt cans all over the mill, or that under ordinary circumstances a workman should not hunt for one rather than use a bottle. That feature of the defense was submitted to the jury under proper instruction. But the plaintiff's evidence tends to prove that he was a "green hand" placed under Kennedy's direction in operating the edger, and that he had seen the latter repeatedly use the same bottle in oiling the machine. The plaintiff had a right, therefore, to suppose that the bottle was the appliance furnished by defendant for the pur- pose of oiling the edger, and that it was in common use for such purpose. It is immaterial to determine whether, strictly speak- ing, Kennedy stood in the relation of vice principal to the plain- tiff or not. Kennedy was his immediate "boss," in charge of the machine where plaintiff was working under Kennedy's direction, and Kennedy had the right to direct him to oil the machine. He did not oil it officiously, but in the line of duty, if his evidence is to be believed. We think his honor, therefore, very properly over- ruled the motion to nonsuit. Among other instructions the court charged the jury that, if the injury was accidental, and not caused by defendant's negligence, the plaintiff could not recover. Upon the issue of contributory negligence, among other instructions the court charged that "it was plaintiff's duty to be careful and guard against accidents; and, if the jury find from the evidence that plaintiff knew the man- ner in which the edger machine ought to be oiled, or ought to have known that it was dangerous to get on top of the machine and pour oil down on the collars, and that by looking and by using ordinary care, that is, such care as a reasonably prudent man would use under like circumstances, he could have seen this dan- ger and failed to do so,' then he was guilty of negligence, and the jury will answer the second issue 'Yes.' " 570 RELATIVE EIGHTS. [67). 6^ The charge of the court upon the issues especially those as tO' negligence and contributory negligence, is unusually full and clear. It presented correctly and intelligently to the jury every phase of the case. To review it would be only to reiterate what has been so often stated in the opinions of this court, which seem to have been carefully followed and applied. Upon an examina- tion of the entire record, we find no error. In Nail v. Brown, 150 N. C. at bot. p. 535, 64 S. E. 435, Brown, J., gives the following clear summary of the law: "Where there is one appliance only which is approved and in general use for performing a certain func- tion it is the master's duty to use it. Where there are several appli- ances used for the same purpose, all of which are approved and in gen- eral use, the master fills the measure of his duty if he exercises reason- able care in making a selection. It is culpable negligence which makes him liable, — not a mere error of judgment. We think this is the consen- sus of the best authorities. Home v. Power Co., 141 N. C. 50, 53 S. E. 658; Phillips v. Iron Works, 146 N. C. 217, 59 S. B. 660; Young v. Constr. Co., 109 N. C. 618, 14 S. E. 58; Harley v. Car Co., 142 N. Y. 31, 36 N. B. 813; O'Neill v. R. R., 66 Neb. 638, 92 N. W. 731." In connection with this summary it must be remembered that the liability of a railroad company operating in North Carolina, for injuries suffered by its servants by rea- son of any defect in the machinery, ways, or appliances of the company, is fixed by sec. 2646 of the Revisal, which is quoted in Hancock v. R. R., 124 N. C. 222, 32 S. E. 679, inserted supra in this section. See 12 L. R. A. (N. S.) 853, 861, and notes (when the relation o£ master and servant exists) ; 1 lb. 944, 6 lb. 602, 492, 787, 11 lb. 738, 13 lb. 384, 668, 14 lb. 972, 15 lb. 812, 1109, 16 lb. 128, 140, 715, 978, 984, 1084, 17 lb. 104, 19 lb. 242, 20 lb. 473, 21 lb. 774, 22 lb. 582, 634, 738, 917, 951, and notes (duty of master to provide a safe pla,ce to work and safe appliances); 3 lb. 209, 8 lb. 284, 19 lb, 997, 21 lb.. 89, 22 lb. 738, 23 lb. 1071, 296, and notes (duty of master to warn servant of dangers and to instruct minors, etc., in use of machinery, etc.); (151 N. C. 31), 6 lb. 337, 16 lb. 214, 23 lb. 171, 1022, and notes (res ipsa loquitur); 6 lb. 981, 9 lb. 338, 12 lb. 461, 1038, 15 lb. 443, 784, and notes (liability of master to his servant for injuries resulting from the master's violation of Em- ployers' Liability Acts, Child-Labor Laws, and statutes providing for safeguards in the operation of factories, mines, etc., and in the con- struction of buildings, operating machinery, etc.); 9 lb. 338, and elab- orate note (master's liability to servant for violation of statutes not expressly conferring a right of action upon the servant) ; 12 lb. 1038, and note (effect of Employers' Liability Act upon the servant's common law remedies); 7 lb. 337, 11 lb. 182, and notes (validity of contracts exempting the master from liability for negligence) ; 11 lb. 182, and elaborate note (contracts requiring the servant to look to relief funds, etc., instead of to the master, for injuries suffered; and for releases ob- tained by the master by proper or by devious methods). See "Master and Servant," Century Dig. §§ 171-263; Decennial and Am. Dig. Key No. Series §§ 101-129. (c) Remedy of the Master Against the Servant. "Breach of Contract by Workmen. — Intimately, indeed insep- arably, connected with the legal position of trades unions is the question of the legal consequences formerly attaching to the breach on the part of a workman of his contract- with his master, in the making of which he was permitted so small a share. At the com- Sec. 3 C] RELATIVE RIGHTS. 571 mencement of the 19th century the Act ol: the twentieth year of Geo. II. c. 19, was still in force. By this Act, the justices of the peace for their counties were to decide all disputes between masters and workmen arising out of their contracts of service. A breach on the master's part was punishable by damages, but a breach on the workman's part was a criminal offense punishable by imprison- ment and flogging. "This Act has been spoken of, with somewhat grim humor, as the Act introducing the principle of arbitration between master and workman. By a statute passed in the year 1 823 justices were given power to deal with, and to punish by imprisonment, breaches of contract on the part of workmen in refusing to enter into, or in quitting the master's service. Such was the state of the law until the year 1867. The remedy of a servant against his master was always a civil remedy, whilst that of the master against the servant was always of a criminal nature. Until the year 1848 (Jervis' Act) whilst masters upon complaint were brought before justices on summons, workmen were always brought before them on war- rant, and until the year 1867 the proceedings took place in private. The combined result of the statute and common law was that in- dividual breach of contract by a workman was punishable by stiit- ute, concerted breach, either by statute or as a conspiracy. "In the year 1867 was passed the statute called 'Lord Elcho's Act,' abolishing imprisonment for breach of contract, except in case of what was called aggravated breach of contract. In the year 1874 a Royal Commission recommended that proceedings against workmen for breach of contract should be divested entirely of a penal character. The report made by this Commission led to the passing of the two statutes, 'The Employers and Workmen Act, 1875,' and 'The Conspiracy and Protection of Property Act, 1875.' the first to regulate the civil, the second to regulate the criminal questions arising out of contracts of service, made between em- ployers and employed — as they were therein for the first time called. "The former of these Acts gives jurisdiction .to the county courts, and a limited jurisdiction to justices, in disputes between employers and workmen, but such proceedings were henceforth to be of a civil and not of a criminal nature ; the second declares that an agreement or combination to do any act in furtherance of a trade dispute shall not render the person committing it indictable for conspiracy, if such act, committed by one person, would not be punishable as a crime. ' ' These latter words may almost be described as ' The Workmen 's Charter of Liberty,' for they dispose at once and forever of the contention that a combination to do acts, not illegal in themselves, is entitled to be regarded by the law as a 'conspiracy.' There are two exceptions: First. — Breach of contract havina- the effect, or likely to have the effect, of depriving the public of either gas or water. Second. — Breach of contract which the workman has rea- sonable cause to believe will endanger life, or cause serious bodily^ 572 RELATIVE RICxHTS., [Ck. 6. injury or endanger valuable property. The specific offenses of violence, intimidation, besetting, etc., are set out and carefully de- fined. ' ' Thus was secured to workmen after a long struggle the right of combination in protection or advancement of their interests, a legal recognition of their trade societies, and equality of contract. The statement of iMr. Disraeli — as he then was — at the Mansion House dinner, in the year 1875, contained more truth than does some post-prandial oratory, when he said : ' For the first time in the history of this country the employer and the employed sit under equal laws. ' The members of trades unions have since the decision of the House of Lords in Allen v. Flood been further protected from civil liability in respect of their combinations, even where the motive prompting their acts is malicious, provided the acts them- selves are not unlawful." A Century of Law Reform, pp. 251- 254. EX PARTE HOLLMAN, 79 S. C 9, 60 S. E. 19, 2t L. R. A. (N. S.) 242. 1908. Statutes Making It a Crime for a Servant to Break His Contract With the Master. Imprisonment for Debt. 13th and IJfth Amendts. Const. U. 8. [Habeas corpus to obtain release from Imprisonment under a sen- tence for violating a contract of service. Prisoner discharged. Only selections from the opinion are here inserted.] Woods, J. . . Section 357 of the Criminal Code of 1902, the statute under which the petitioner was convicted, and which is here attacked, is as follows: "Any laborer working on shares of crop or for wages in money or other valuable consideration under a verbal or written contract to labor on farm lands, who shall re- ceive advances either in money or supplies and thereafter wilfully and without just cause fail to perform the reasonable service re- quired of him by the terms of the said contract shall be liable to prosecution for a misdemeanor, and on conviction shall be pun- ished by imprisonment for not less than twenty days nor more than thirty days, or to be fined in the sum of not more than twenty-five dollars nor more than one hundred dollars in the discretion of the court : Provided, the verbal contract herein referred to shall be witnessed by at least two disinterested witnesses." The first question is whether this statute violates section 24 of article 1 of the state constitution, which provides: "No person shall be imprisoned for debt except in cases of fraud." The act refers exclusively to a farm laborer working for a consideration under a contract, who (1) "shall receive advances in money or sup- plies, and (2) thereafter wilfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract. "It will be observed the statute does not require for the completion of the crime, proof of the malting of the contract Sec. 3 C] RELATIVE EIGHTS. 57? and the obtaining of the advances on the faith of it with the inten- tion formed at the lime not to perform the servici^ Such action as that on the part of the laborer Avould be fraudulent, and a statute providing for its punishment would not violate a constitutional provision allowing imprisonment for debt in cases of fraud. But the act under consideration provides imprisonment as a punish- ment for conduct after the contract has been made and the work be- gun^ and the important inquiries are, first, is the conduct so made criminal a failure to pay a debt? and, second, is such conduct con- sistent with good faith, with entire absence of fraud ? If these in- quiries are to be answered in the affirmative, then it follows that the acts should be declared unconstitutional as providing for im- prisonment for debt without proof of fraud. The statute does not go to the extent of requiring the laborer to pay the advances in labor, and therefore there is nothing to prevent his discharge of the debt for advances in the same manner as other debts are dis- charged. It is equally clear that the service due by the laborer un- der the contract is also a debt within the meaning of the constitu- tion. Debt is that which is due from one person to another, whether money, goods, or services, and whether payable at present or at a future time. Century Dictionary ; 13 Cyc. 399, and authori- ties cited. The term "debt," within the meaning of the constitu- tion, is generally held to embrace obligations arising out of con- tract, and to exclude liability for tort and for fines imposed for crime. Carr v. State, 34 L. R. A. 634, note ; State v. Brewer, 38 S. C. 263, 16 S. E. 1001, 19 L. R. A. 362, 37 Am. St. Rep. 760. Therefore, beyond dispute, the laborer referred to in the statute falls under the terms of the constitution as a person who by his con- tract incurs a debt for advances received by him and for labor which he promises to perform. For the mere failure to discharge these debts the constitution forbids his imprisonment. If, how- ever, the laborer contracts such a debt fraudulently or fraudu- lently avoids the discharge of it, he falls without the protection of the constitution. . It is strenuously argued, however, that the act does not pro- vide for imprisonment for debt under civil process, and that the general assembly may make an act criminal and punishable by im- prisonment which is not fraudulent and recognized as morally wrong. The power of the general a.ssembly to make an act crim- inal, which was before innocent, is familiar. But the legislative power to make acts criminal and punishable by imprisonment can- not be extended to an invasion of the rights guaranteed the citizen by the constitution. It is impossible to frame a valid statute pun- ishing by imprisonment the exercise of the right to religious lib- erty, or the right to petition for the redress of grievances, or the right to be exempt from imprisonment for debt, except in eases of fraud. These are all constitutional rights, which cannot be abridged under the guise of legislation against crime. The exer- cise of them cannot be crime. The respondents urged that imprisonment for the failure to per- 571 REI-ATIVE RIGHTS. \Ch. 6. form personal service has been sustained by the supreme court of the United States in the ease of Robertson v. Baldwin, 165 U. S. 275, 17 Sup. et. 326. 41 L. Ed. 715. This is true. That ease does hold constitutional an act of congress authorizing punishment by imprisonment of deserting sailors. But the constitution of the United States contains no provision against imprisonment for debt. . . [After discussing the validity of the statute under the 13th and Mth amendments to the constitution of the United States and the acts of congress forbidding peonage, etc., the opinion concludes:] We conclude that the statute under which the defendant was con- victed is invalid, because oppt)sed to section 24, article 1, of the constitution of the state, to the thirteenth amendment to the con- stitution of the ITnited States and the act of congress passed in pursuance thereof, known as the "peonage statute," and to the fourteenth amendment of the constitution of the United States, and section 5, article 1 , of the constitution of this state. It may be. in the long run, the welfare of all the people and the development of the negro race in virtue and strength would have been better pro- moted by laws imposing upon the people of that race on their emer- gence from slavery a degree of restraint and discipline under rigid laws for their protection. But that question is not for the court. The constitutions of the United States and of this state, as they are, must control the courts ; and the fundamental principle of these constitutions is that the welfare of all the people is promoted by the enjoyment of f<|ual liberty by all alike, and that even if prosperity is not always promoted by constitutional guarantees, liberty is better than prosperity. The opinion of the court is that the prisoner be discharged. [In the course of the opinion it is said:] Finally, we consider whether the statute is opposed to the fourteenth amendment to the constitution of the United State.s and section 5 of article 1 of the constitution of the state as denying to a farm laborer falling under it the equal protection of the laws. We incline to the opinion that a statute not admitting of this objection could be framed, making criminal and punishable by imprisonment a farm laborer's fraud in obtaining advances, and a landlord's fraud in contracting with a laborer, and that it would be no valid objection to such a statute that it did not apply to all persons or even to all laborers and em- ployes. The opinions in the principal case are very comprehensive and cite and review a great many authorities. They should he carefully read because of their invaluable and unanswerable arguments in protecting the liberty of the citizen. See also note to the principal case in 21 L. R. A. (N. S.) 242; lb. 259. That such legislation is invalid under the constitution of North Caro- lina is ruled in State v. Williams, 150 N. C. 802, 63 S. E. 949. It will l3e seen that the North Carolina statute, Revisal, sec. 3367, is framed to meet the suggestion in the principal case that such laws would not violate the 14th Amendment, if aimed at master and servant alike. In Robertson v. Baldwin, 165 U. S. 275, at p. 281, 17 Sup. Ct. 329, we NfC. 3 C] RELATIVE RIGHTS. 575 lind this: "The breach of a contract for personal service has not been recognized in this country as involving a liability to criminal punish- ment, except in case of soldiers, sailors, and possibly some others; nor would pi'blic opinion tolerate a statute to that effect." "The contract of a sailor has always been treated as an exceptional one and involving, to a certain extent, the surrender of his personal liberty during the life of the contract." Ibid, headnote 4. The 13th Amendment to the Const, of U. S. , forbids slavery or other involuntary servitude, except as a punishment for crime. Sections 1990 and 5526 of the U. S. Rev. Stat, prohibit peonage. These sections are held to be constitutional in Clyatt v, U. S., 197 U. S. 207, 25 Sup. Ct. 429. Peonage is defined to be "a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The .basal fact is indebtedness." 197 U. S. at p. 215, 25 Sup. Ct. 430. See 30 Cyc. 1382, for a full discussion of peonage. See ch. 11, sec. 1, post, "Arrest and Bail." See "Constitutional Law," Century Dig. §§ 150- 151%; Decennial and Am. Dig. Key No. Series § 83; "Master and Serv- ant," Century Dig. § 75; Decennial and Am. Dig. Key No. Series § 67. THE CASE OP MARY CLARK, 1 Blackford, 122. 1821. Specific Performance of Contract to Serve. [Habeas corpus proceedings to obtain freedom from the detention of ■a, master. Judgment against applicant, who appealed. Reversed. A colored free woman bound herself to serve the respondent for twenty years as housemaid. She concluded to break her covenant and quit the service. The respondent insisted upon a specific performance of the covenant of service and a consequent right to detain the appli- cant.] Holm AN, J. . . We shall discard all distinctions that might be drawn from the color of the appellant, and consider this indenture as a writing obligatory, and test it, in all its bearings, by the principles that are applicable to all cases of a similar na- ture. It is a covenant for personal service, and the obligee re- (luires a specific performance. It may be laid down as a general rule, that neither the common law nor the statutes in force in this state recognize the coercion of a specific performance of contracts. The principal, if not the only exceptions to this general rule, are statutory provisions, few, if any of which are applicable to thi.s state, and none of them has any bearing on this case. Apprentices are compellable to a specific performance of the articles of appren- ticeship, but their case rests on principles of a different nature. They are not considered as performing a contract of their own, but acting in conformity to the will of those whose right and duty it was to exact obedience from them. That right and duty existed by nature in the parent, and are, by legal regulations, transferable to the master during the minority of the child; and when trans- ferred, either by the parent, or those who stand in loco parentis, the duty of obedience arises, and is enforced on the ground of pa- rental authority, and not on the principle of specific performance «f contracts; and cannot be urged as an exception to the rule, that the coercion of a specific performance of contracts is not contem- •"»76 RELATIVE RIGHTS. [Ch. 6. plated in law. The case of soldiers and sailors depends on national policy, and cannot be used in the elucidation of matters of private right. There are some covenants that may be specifically enforced in equity; but they are of a very different nature from the contract before us. They are mostly covenants for the conveyance of real estate, and in no case have any relation to the person. But if the law were silent, the policy of enforcing a specific performance of a covenant of this nature, would settle this question. Whenever con- tracting parties disagree about the performance of their contract, and a court of justice of necessity interposes to settle their different rights, their feelings become irritated against each other, and the losing party feels mortified and degraded in being compelled to perform for the other what he had previously refused, and the more especially if that performance will place him frequently in the presence or under the direction of his adversary. But this state of degradation, this irritation of feeling, could be in no other case so manifestly experienced, as in the case of a common servant, where the master would have a continual right of command, and the servant be compelled to a continual obedience. Many cove- nants, the breaches of which are only renumerated in damages,, might be specifically performed, either by a third person at a dis- tance from the adversary, or in a short space of time. But a cove- nant for service, if performed at all, must be personally performed under the eye of the master ; and might, as in the case before us, re- quire a number of years. Such a performance, if enforced by law. would produce a state of servitude as degrading and demoralizing in its consequences, as a state of absolute slavery ; and if enforced under a government like ours, which acknowledges a personal equality, it would be productive of a state of feeling more discord- ant and irritating than slavery itself. Consequently, if all other contracts were specifically enforced by law, it would be impolitic to extend the principle to contracts for personal services. Very dissimilar is the case of apprentices. They are minors, and for the want of discretion, are necessarily imder the control of parents, guardians, or masters; and obedience is exacted from them, whether considered as children, wards, or apprentices. They are incapable of regulating their own conduct, and are subjected by nature and by law to the government of others; and that govern- ment, instead of humbling and debasing the mind, has a tendency to give it a regular direction, and a suitable energy for future usefulness. But it is not the master who in this case applies for legal aid. He has not appealed to a court of jtistice to obtain a specific performance of this indenture. All he asks from tho con- stituted authorities is, that they would withhold their assistance from his servant. Does this alter the case in his favor ? Is it more consistent with good policy, that a man possessing the power, should be left to enforce a specific performance of a contract in his own behalf, than that the officers of justice, on a full consideration of his case, should enforce it for him? These questions are not only Sec. 3 c] RELATIVE RIGHTS. 577 easily answered in the negative,, but their re^■erse is unquestionably true. Deplorable indeed would be the state of society, if the ob- ligee in every contract had a right to seize the person of the obligor, and force him to comply with his undertaking. In con- tracts for personal service, the exercise of such a right would be most alarming in its consequences. If a man, contracting to labor for another a day, a month, a year, or a series of years, were liable to be taken by his adversary, and compelled to perform the labor, it would either put a stop to all such contracts, or produce in their performance a state of domination in the one party, and abject humiliation in the other. We may, therefore, unhesitatingly con- clude, that when the law will not directly coerce a specific per- formance, it will not leave a party to exercise the law of the strong, and coerce it in his own behalf. A state of servitude thus pro- duced, either by direct or permissive coercion, would not be con- sidered voluntary either in fact or in law. It presents a case where legal intendment can have no operation. While the appellant re- mained in the service of the obligee without complaint, the law pre- sumes that her service was voluntarily performed ; but her applica- tion to the circuit court to be discharged from the custody of her master, establishes the fact that she is willing to serve no longer; and, while his state of the will appears, the law cannot, by any pos- sibility of intendment, presume that her service is voluntary. The case of an apprentice presents a different state of things. The minor is considered as having no legal will. He has neither the power nor the right of choosing whether he will obey or disobey the commands of his master. The law, therefore, on account of the immaturity of his will, cannot presume that any of his services are involuntarily performed. The appellant in this case is of legal age to regulate her own conduct ; she has a right to the exercise of volition; and, having declared her will in respect to the present service, the law has no intendment that can contradict that declara- tion. We must take the fact as it appears, and declare the law ac- cordingly. The fact then is, that the appellant is in a state of involuntary servitude ; and we are bound by the constitution, the supreme law of the land, to discharge her therefrom. Judgment reversed. For when one who has contracted to serve one person exclusively, will be enjoined from serving another, see chap. 8, sec. 9, post. In Casey v. Robards, 60 N. C. 434, 436, it is said: "In the case of Phil- lips V. Murphey, 49 N. C. 45, it was decided that a deed made by a free negro, of his services for a term of years, did not operate to make a slave of him, or to pass a property in him; but simply to give the grantee a right to his services upon an executory agreement, for a breach of which an action of covenant would lie. So, in the case be- fore us, the deed for services for a term of years does not alter the so- cial or political condition of the negro. No other or different legal consequences result from his agreement, than it it had been entered into by a white man. Both, upon a breach of it, are subject to be sued for damages. Neither is subject to have enforced against him a spe- cific execution." See "Specific Performance," Century Dig. §§ 206-210; Decennial and Am. Dig. Key No. Series § 73. Remedies — 37. 578 RELATIVE EIGHTS. \(-'^1- (d) Master's Bight to Exoneration Against the Servant. SMITH V. FORAN, 43 Conn. 244, 21 Am. Rep. 647. 1875. Liability of a Servant to a Master Who Has Been Mulcted in Damages for Servant's Negligence. [Trespass on the case by a carrier, for damages resulting from the neg- ligence of its servant in handling a piano. Judgment against defendant, who moved in error. Motion overruled and judgment affirmed. The defendant's negligence caused the piano to be injured. The plain- tiff paid the shipper for the injury done, without any litigation. The defendant insisted that, as the master paid damages without compul- sion of legal proceedings, the master could not recover from him, the servant, the amount so paid.l Park, C. J. If the plaintiffs in this case had been the owners of the piano, which was injured through the carelessness of the de- fendant, it would be clear that the defendant would be liable to them for the amount of the damage done to the property; for a. hired servant is as much bound to exercise reasonable care not to injure the property of his employer while engaged in his service, as he is to exercise such care in relation to the property of other persons. There is nothing implied in the contract of employment which absolves him from such respo.nsibility, but, on the contrary, the implication is that he undertakes to exercise such care. But it is said that the liability of the defendant to the plaintiffs in this case arises from the supposed liability of the plaintiffs to the person whose property was injured by the carelessness of the defendant while engaged in their business, and, this being the case, that the liability of the plaintiffs must first be established in a suit brought by the owner of the property against them, and the amount of the damages ascertained before a suit can be sustained by the plaintiffs against the defendant. It is unnecessary to determine how this would be in an ordinary case of a liability of a master for the negligence of his servant, as where the servant in driving the master negligently runs into the carriage of another and injure? it. There the master is liable in damages for the act of the serv- ant, and the serA'ant to the master for whatever loss he is subjected to by the servant's negligence. Here, however, another element comes in. The plaintiffs, being common carriers, had a special property in the piano and could, as such special owners, maintain an action against the servant for an injury by his negligence Lo such special property. And besides this, the plaintiffs, by reason of their undertaking as common carriers, were liable to the owner of the piano for its destruction or injury, even though it had been destroyed in the hands of the servant with no fault of his, as where the horses he was driving had run away and broken the piano in pieces, in spite of his careful driving and in his efforts to control them. The liability of the plaintiffs stands upon its own ground, their implied contract to deliver the piano in good condition at its place of destination, in spite of all obstacles except those caused by Sec. 3 d.] RELATIVE RIGHTS. 579 the act of God or of a public enemy. And this liability rests upon no other ground where the delivery is prevented by the negligence of their servant. He is liable to them for his negligence, they to the owner for non-performance of their undertaking. But the two kinds of liability have this in common, that where, as here, the carrier fails to deliver the property solely because of its destruction or injury by his servant, the amount of damage to which the carrier is liable at the suit of the owner is precisely the same as that to which the servant is liable at the suit of the carrier. And upon this fact the counsel for the defendant base their claim that the plaintiffs should have first had their liability and the ex- act amount of it established in a suit at law before they could main- tain a suit against the defendant. But the reason of the thing is wholly against this claim. In the first place, if the plaintiffs were liable to the owner of the piano, it is absurd to require the owner to bring a suit, and the plaintiffs to defend against it, and finally pay, after a judgment and with costs, what they were perfectly willing to pay at the outset, and what the judgment would show they were legally bound to pay. And in the next place, the judg- ment would not establish the liability of the defendant. That, as we have seen, would stand upon its own ground, and his negligence, on which alone his liability would rest, would not even enter into the suit against the plaintiffs as a matter for consideration. He could still, in the suit against him, deny the fact of his negligence, and could prove the amount of the damage. All this he could do if the plaintiffs had settled with the owner without suit. If in such settlement they had paid the owner more than the actual damage, such payment would not have bound the defendant. He would be liable to them only for the actual damage. If, however, they had settled with the owner for less than the real damage, they could re- cover of the defendant no more than the damages paid. The dam- age which the defendant is to pay is the actual damage to the plain- tiffs. That of course cannot be greater than the sum they have had to pay, though it may be less, if they have unnecessarily and of their own folly paid more than they were obliged to pay. They, were bound to pay the actual damage done to the piano, and if they got off with paying less, then they were themselves damaged so much less, and could recover only such reduced sum from the de- fendant. Until the plaintiffs have settled with the owner it is to be pre- sumed that they will be compelled, either upon a voluntary settle- ment or upon suit, to pay the owner the actual damage. If the de- fendant had reason to suppose that a settlement could be effected for a less sum, he could himself settle with the owner, and save the plaintiffs from the necessity of paying damages at all; and this it would be equally his duty and his interest to do. We think there is no error in the judgment complained of. See also Meares v. Comrs. of Wilmington, 31 N. C. at p. 79, where it is said by Pearson, J.: "If the work he done according to the directions of the superior and the agent is sued and pays damages, he has his redress 580 RELATIVE BIGHTS. [C/i. 6. against the superior; if the work is done contrary to the directions of the superior and the superior is sued and pays damages, he has his re- dress against the agent." In Wiswall v. Brinson, 32 N. C. at p. 555, Pearson, J., again says: "When one procures worli to be done, if a third person he injured by the negligence or want of skill of the persons employed, the person for whose benefit and at whose instance the work is done, must make compensation. The party injured may sue the person whose negligence was the imme- diate cause of the injury. So may the employer, if he is compelled to pay the damage;" and speaking of the employer's remedy against the employee, he says, at p. 562: "He selected his man; the work was done for his benefit; and he can be indemnified by the person he employed, unless he be insolvent; and if so, it was his folly to employ an insolvent man." See Mordecai's L. L. 85. For a ruling on an allied subject, see Brown v. Louisburg, 126 N. C. 701, 36 S. E. 166. See "Master and Serv- ant," Century Dig. § 1237; "Indemnity," Decennial and Am. Dig. Key No. Series § 13. (e) Remedies of Both Master and Servant Against Third Persons. BURGESS V. CARPENTER, 2 S. C. 7, 16 Am. Rep. 643. 1870. Remedy of Master Whose Servant Is Disabled hy a Tort of Another. Menial Servant. [Action on the case for damages resulting from defendant's wounding one in the employ of plaintiff. Judgment of nonsuit against plaintiff, and he appealed. Affirmed.] Wright, J. This was an action brought to recover damages which plaintiff claimed to have sustained by reason of a gunshot wound, charged to have been inflicted by defendant upon one Henry Burgess, who was a contractor with plaintiff, in common with other persons, for a share of the crop, which all parties to the contract were laboring to raise at the time the gunshot wound was said to have been inflicted upon the said Henry Burgess. It was claimed by plaintiff, that the said Henry Burgess was his servant, inasmuch as he had contracted vi'ith him to raise a crop. The relation of master and servant, as it existed in England, was wholly different from the relation of employer and employed as it exists in this country. At common law, in England, the master might bring an action for damages against a third party for any loss he might have sustained by reason of such party unlawfully in- juring or interfering with his servant or servants ; but this power, given the master, was only to be exercised toward menial serv- ants — domestics infra moenia. It was a relation which the com- mon law classed with the relation of "parent and child." The master was held to stand in loco parentis. No such relation existed between the plaintiff and Henry Burgess. In Pennsylvania, in a ease under the intestate law of April, ITQi, in which a preference is given to the wages of servants, the courts have restricted the term ' ' servant ' ' used in the act to ' ' persons employed in the house and about the intestate's person," in order that, when disease had rendered the master helpless, there might be an additional reason Sec. 3 e.] relative eights. 581 to attention on the part of the domestic or menial. A case arose in which a barkeeper brought suit for his wages, and Chief Justice Gibson and Justice Duncan, of the supreme court, decided that he had preference under the law, because his position as barkeeper brought him within the term ' ' servant, ' ' as his duties as such made him a domestic. Boniface v. Scott, 3 S. & R. 352. Chief Justice Gibson says, in Pennsylvania none are called "servants whose persons are not subjected to the coercion of the master, whether the business in which they are employed be servile or not. No person to whom wages could be due for his services would endure the name, as it would be considered offensive, and a term of reproach. I take all who are employed for hire in the do- mestic concerns of the family, in whatever station they may be, to be servants, entitled to a preference under the act. Neither do I apprehend it to be necessary that the occupation of such persons should be exclusively confined to the family. The clerk in a count- ing house, etc., is exclusively concerned with the occupation or trade by which his employer gets his living ; and there being noth- ing of a domestic cast in the nature of his services, he would not fall within the act. If, in this country, a tavern were a separate establishment, unconnected with the domestic scene, I should sup- pose the plaintiff not entitled to a preference ; but the contrary is the fact ; with, perhaps, the exception of one or two large establish- ments in Philadelphia, the concerns of the family are so blended that it is impossible to separate them," etc. In the same case, Justice Duncan says: "The term 'servants,' whose wages under the act of 1794, are ranked with physic and funeral expenses, to be paid out of the intestate's estate, has re- ceived a judicial construction in Ex parte Measan, 5 Binn. 167. It has been held to embrace only those who, in common parlance, are called servants ; that is, as I understand the opinion of the court, hirelings, who make a part of a man's family, employed for money, to assist in the economy of the family or in matters connected with it." Henry Burgess being exclusively concerned in the cultivation of soil and the proceeds arising therefrom, and there being no domes- tic cast within the nature of his services, he does not fall within the class to which the term "servant" can, in any sense, be applied. He was a party to the contract, and liable for any breach of good faith on his part to comply with the terms of that contract ; and the plaintiff, being also a party to the same contract, sustained the same relation to Henry Burgess that Henry Burgess did to him ; therefore, each was sui juris, and neither the servant of the other. Henry Burgess being a free man, and competent to make a con- tract, is responsible for his own actions, and has the legal right of action against the defendant for any private injury he has sus- tained at his hands. As each of the parties to the contract con- tributed his special portion of the means necessary to the produc- tion of the crop, and each was to receive his special portion after an equitable division, if there was a loss it was a common loss ; and if 582 RELATIVE RIGHTS. [Ch. 6. the defendant committed an unlawful act which was the cause of such loss, then the parties to the contract, severally, have the legal right of action against the defendant for damages. This court holding that on the statement of the plaintiff he had no cause of action, it made no difference at what stage of the case the judge below ordered the nonsuit, and his interposition, stated in the brief, did not prejudice the plaintiff. The motion is dis- missed. See Huff v. Watkins, 15 S. C. 82, distinguishing the principal case. In 26 Cyc. 1580, note 41, it is said that the rule that the master's right of recovery, for injuries, etc., to his servants, is confined to menial serv- ants, no longer holds: but no authority is cited. In a letter from Mr. E. D. Smith, of the American Law Book Company, to the editors, is the fol- lowing: "The statement in 26 Cyc. 1580, note 41, 'but such limitation is not now recognized,' is amply supported by authorities but, as you say, they are for enticement and torts other than personal injuries to the servant. I have made a very thorough search in all available sources and have been unable to find a case similar to Burgess v. Carpenter, 2 S. C. 87, 16 Am. Rep. 643. Huff v. Watkins, 15 S. C. 82, is an action for enticement." It is held in Walker v. Cronin, 107 Mass. at p. 567, that to entice any servant to leave his master is actionable — whether the servant be a menial servant or not. For a general discussion of the master's right to recover for injuries to his servant, see 20 Am. & Eng. Enc. Law, 184; 25 lb. 218; 26 Cyc. 1580. The principal case is doubted in Haskins v. Royster, 70 N. C. 601, inserted post in this subsection. See "Master and Servant," Century Dig. §§ 1281, 1282; Decennial and Am. Dig. Key No. Series §§ 336, 337. THE QUEEN v. DANIEL, 6 Modern, 182. 1705. Remedy of the Master Whose Servant Is Enticed to Quit His Service. Per Totam Curiam. — This term, the indictment is naught. First. The enticing an apprentice or a servant to depart from his master, is not an offense of a public nature, but the party 's remedy is by an action upon his ease, which he may well maintain. Secondly. A common action of trespass will not lie for enticing an apprentice or servant from his master. But if one will take away my servant or apprentice by force, trespass will lie for the matter, declaring upon the force, per quod servitium amisit. . In an action for enticing, persuading, and procuring a servant to quit the service of the master, it is said to be necessary that plaintiff allege and prove that the defendant had knowledge or notice that the relation of master and servant existed. Clark v. Clark, 63 N. J. L. 1, 42 Atl. 770. citing Blake v. Lanyon, 6 T. R. 221; 2 Chit. PI. 643, note (e); 8 Went. 458. But in an action for seducing a daughter it is not necessary to al- lege or prove that the defendant knew or had notice that the daughter was the servant of the plaintiff. Ibid., citing 22 Chit. PI. 644, n. a, and Sm. Mast, and Servt. *175. See "Master and Servant," Century Dig. §§ 1283-1285, 1288; Decennial and Am. Dig. Key No. Series §§ 339, 340, 343. Sec. 3 e.] relative rights. 583 HASKINS V. ROYSTER, 70 N. C. 601. 1874. Remedy of Master Whose Servant Is Enticed, etc. Intermeddlers. [Action by a master for damages resulting from alleged enticing. Judgment against the plaintiff, and He appealed. Reversed.] Rodman, J. We take it to be a settled principle of law that if one contract upon a consideration to render personal services for another, any third person who maliciously, that is, without a law- ful justification, induces the party who contracted to render the service to refuse to do so, is liable to the injured party in an action for damages. It need scarcely be said that there is nothing in this principle inconsistent with personal freedom, else we should not find it in the laws of the freest and most enlightened states in the world. It extends impartially to every grade of service, from the most brilliant and best paid to the most homely, and it shelters our nearest and tenderest domestic relations from the interference of malicious intermeddlers. It is not derived from any idea of prop- erty by the one party in the other, but is an inference from the obligation of a contract freely made by competent persons. We are relieved from any labor in finding authorities for this principle by a very recent decision of the supreme court of Massa- chusetts, in which a learned and able judge delivers the opinion of the court. Walker v. Cronin, .107 Mass. 555. That case was this: The plaintiffs declared in substance that they were shoemakers and employed a large number of persons as bottomers of boots and shoes, and defendant, unlawfully and intending to injure the plain- tiff in his business, persuaded and induced the persons so em- ployed to abandon the employment of the plaintiff, whereby plain- tiff' was damaged, etc. A second count says that plaintiff had em- ployed certain persons named to make up stock into boots and shoes, and defendant well knowing, etc., induced said persons to refuse to make and finish such boots and shoes, etc. Third count is not material to be noticed. The defendant demurred. The court, held each of the counts good. I shall make no apology for quoting copiously from this opinion, because the high respectability of the court, and the learning and care with which the question is discussed, make the decision em- inently an authority. "This (the declaration) sets forth sufficiently (1) intentional and wilful acts, (2) calculated to cause damage to the plaintiffs in their lawful business, (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice), and (4) actual dam- age and loss resulting. The general principle is announced in Com. Dig., action on the case, A. In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages. The intentional causing such loss to another, without justifiable cause, and with the mali- cious purpose to inflict it, is of itself a wrong. See Carew v. Ruth- 584 RELATIVE EIGHTS. [Ch. 6. erford, 106 Mass. 1, 10, 11. Thus every one has an equal right to employ workmen in his business or service ; and if by the exercise of this right in such manner as he may see fit, persons are induced to leave their employment elsewhere, no wrong is done to him whose employment they leave, unless a contract exists by which such other person has a legal right to the further continuance of their services. If such a contract exists, one ivho knowingly and intentionally procures it to be violated, may be held liable for the wrong, although he did it for the purpose of promoting his own business. ' ' Every one has the right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition ; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, with- out the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing, and falls within the principle of the authorities first referred to. "It is a familiar and well-established doctrine of the law upon the relation of master and servant, that one who entices away a servant, or induces him to leave his master, may be held liable in damages therefor, provided there exists a valid contract for con- tinued service known to the defendant. It has sometimes been sup- posed that this doctrine sprang from the English statute of laborers and was confined to menial service. But we are satisfied that it is founded upon the legal right derived from the contract, and not merely upon the relation of master and servant, and that it applies to all contracts of employment, if not to contracts of every de- scription." In Hart v. Aldridge, Cowp. 54, it was applied to a case very much like the present. In Gunter v. Astor, 4 J. B. Moore, 12, it was applied to the enticing away of workmen not hired for a lim- ited or constant period, but who worked by the piece for a piano manufacturer. In Shepperd v. Wakeman, Sid. 79, it was applied to the loss of a contract of marriage, by reason of a false and ma- licious letter claiming a previous engagement. In Winsmore v. Greenbank, Willes, 577, the defendant was held liable in damages for unlawfully and unjustly "procuring, enticing and persuad- ing" the plaintiff's wife to remain away from him, whereby he lost the comfort and society of his wife, and the profit and advan- tage of her fortune. Barbee v. Armstead, 32 N. C. 530. In Lumlv v.Gye, 2 El. & Bl. 216 (20 Eng. L. & E. 168), the plaintiff had engaged Miss Wagner to sing in his opera, and the defendant knowingly induced her to break her contract and refuse to sing. It was objected that the action would not lie, because her contract was merely executory, and she had never actually entered into the service of the plaintiff; and Coleridge J., dissented, insisting Sec. 3 e.] relative rights. 585 ' ' that the only foundation for such an action was the statute of la- borers, which did not apply to a service of that character ; but after full discussion and deliberation it was held that the action would lie for the damage thus caused by the defendant." To the same effect are Jones v. Jeter, 43 Geo. 331, and Salter v. Howard, lb. 601, in both which eases the servants enticed were employees in husbandry. The only ease to the contrary that ^ve are aware of is Burgess v. Carpenter, 2 Rich. S. C. 7 ; but the authorities relied on in that ease seem to us not in point. And although this action is not brought under our Act of 1866, Bat. Rev. ch. 70 [Revisal sees. 3365, 3374] , yet that act is evidence of the common law. Again it is suggested, that the contractors of the second part in this contract are croppers and not servants. By cropper, I under- stand a laborer who is to be paid for his labor by being given a proportion of the crop. But such a person is not a tenant, for he has no estate in the land, nor in the crop until the landlord assigns him his share. He is as much a servant as if his wages were fixed and payable in money. It is unnecessary to discuss the question whether one who maliciously persuaded a tenant to abandon his holding, would not be liable in damages for such officious inter- meddling. But whatever may be the effect of the provisions commented on, as between the parties to the contract, the authorities are clear and decisive that a person in the situation of the defendant can take no advantage from them. As the case now stands, he cannot pretend to play the part of a chivalrous protector of defrauded ignorance. For the present, at least, he must be regarded as a malicious inter- meddler, using the word malicious in its legal sense. There is a certain analogy among all the domestic relations, and it would be dangerous to the repose and happiness of families if the law permitted any man under whatever professions of philan- thropy or charity, to sow discontent between the head of a family and its various members, wife, children and servants. Interfer- ence with such relations can only be justified under the most special circumstances, and where there cannot be the slightest sus- picion of a spirit of mischief-making or self-interest. To enable a plaintiff to recover from one who entices his servant, it is sufficient to show a subsisting relation of service, even if it be determinable at will. In Keane v. Boycott, 2 H. Bl. 611. the plain- tiff sued a recruiting officer for enticing his servant. The servant was an infant and had been a slave in St. Vincents, where he in- dentured himself to serve the plaintiff for five years. The inden- ture of course was void upon a double ground, but the court held the plaintiff entitled to recover. Byre, C. J., says: "The defend- ant in this case had no concern in the relation between the plain- tiff and his servant ; he dissolved it officiously, and, to speak of his conduct in the mildest terms, he carried too far his zeal for the re- cruiting service." In Sykes v. Dixon, 9 Ad. & Bl. 693, that case is distinguished from Keane v. Boycott, upon the ground that the 586 RELATIVE RIGHTS. \C]l. 6. servant had quitted his master before the defendant employed him, and there was then no subsisting relation of service. In Evans v. Walton, 2 C. P. 615 (E. L. R.) . it was held not necessary to show a valid and binding contract for service, but only the existence of the relation. If the servant was one at will, the action could be sustained. Salter v. Howard, 53 Ga. 601, is to the same effect. We are of opinion that the complaint sets forth a sufficient cause of action. The judgment is reversed. It will be observed that the principal case is based upon Walker v. Cronin, 107 Mass. 555. That case is approved in Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, inserted next following this case. See, in connection with the principal case, Mordecai's L. L. 157-161; Mcintosh on Contracts, 406, 407. Compare Francesco v. Barnum, L. R. 45 C. D. 430, 443, Smith's Cases L. P. 184. See "Master and Servant," Century Dig. § 1283; Decennial and Am. Dig. Key No. Series § 339. VEGELAHN \\ GUNTNER, 167 Mass. 92, 44 N. E. 1077. 1896. Master's Remedy iy Injunction lor Enticing, Intimidating, etc.. His Servants. [Bill in equity to enjoin defendants from intimidating and interfering with the employees of the plaintiff, and from doing all other acts which would tend to obstruct plaintiff in the prosecution of his business, or intimidate or annoy plaintiff's workmen or those who might wish to work for him. Decree against the defendants, and they appealed. Af- firmed. The defendants were strikers who by various means endeavored to prevent other workmen from taking their places. The final decree was as follows: "This cause came on to be heard, and was argued by counsel; and thereupon, on consideration thereof, it is ordered, adjudged, and de- creed that the defendants, and each and every of them, their agents and servants, be restrained and enjoined from interfering with the plaintiff's business by obstructing or physically interfering with any persons in entering or leaving the plaintiff's premises numbered 141, 143, 145, 147, North Street in said Boston, or by intimidating, by threats, express or implied, of violence or physical harm to body or property, any person or persons who now are or hereafter may be in the employment of the plaintiff, or desirous of entering the same, from entering or continuing in it, or by in any way hindering, interfering with, or preventing any person or persons who now are in the employment of the plaintiff from continuing therein, so long as they may be bound so to do by lawful contract."] Allen, J. The principal question in this case is whether the de- fendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff's work- men, the defendants conspired to prevent him from getting work- men, and thereby lo prevent him from carrying on his business, unless and until he should adopt a certain schedule of prices. The means adopted were persuasion and social pressure, threats of per- sonal injury or unlawful harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plain- tiff's factory, maintained from half past six in the morning till half past five in the afternoon, on one of the busiest streets of Sec. 3 v.] RELATIVE RIGHTS. 587 Boston. The number of men was greater at times, and at times. showed some little disposition to stop the plaintiff's door. The pa- trol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen ; and it was found that the patrol would probal)ly be continued if not en- .ioined. There was also some evidence of jicrsuasion to break ex- isting contracts. The patrol was maintained as one of the means of carrying out the defendants' plan, and it was used in combina- tion with social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts. It was thus one means of intimidation, indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plain- tiff', and of rendering such employment unpleasant or intolerable to •such persons. Such an act is an unlawful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutiially agreed upon, and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the constitution itself. Com. V. Perry, 155 Mass. 117, 28 N. B. 1126; People v. Gillson, 109 X. Y. 389, 17 N. E. .3-1:3 ; Braceville Coal Co. v. People, 147 111. 71, 35 N. E. 62; Ritchie V. People, 155 111. 98. 40 N. E. 454; Low v. Printing Co. (Neb.), 59 N. AV. 362. No one can lawfully interfere by force or intimidation to prevent employers or persons employed or wishing to be employed from the ex(>rcise of these rights. It is in Massachusetts, as in some other states, even made a criminal of- fense for one, by intimidation or force, io prevent, or seek to pre- vent, a person from entering into or continuing in the employment or a person or corporation. Pub. !~vt. c, 74. § 2. Intimidation is not limited to threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimidation which is illegal. Patroling or picketing, under the circumstances stated in the report, has elements of intimidation like those which were found to exists in Sherry v, Perkins, 147 Mass. 212, 17 N. E. 307. It was declared to be unlawful in Reg. v. Druitt. 10 Cox, Cr. Cas. 592; Reg. v, Hibbert, 13 Cox, Cr. Cas. 82; Reg. V. Bauld, Id, 282. It was assumed to be unlawful in Trollope V. Trader's Fed. (1875) 11 L. T. 228, though in that case the pick- ets were withdrawn before the bringing of the bill. The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases ; and, when insti- tuted for the purpose of interfering with his business, it became a private nuisance. See Carew v. Rutherford. 106 Mass. 1 ; Walker V. Cronin, 107 Mass. 555; Barr v. Trades Council (N, J. Ch.), 30 Atl. 881; Murdock v. Walker, 152 Pa. St. 595. 25 Atl. 492; China Co. V. Brown, 164 Pa. St. 449, 30 Atl, 261 ; Coeur D'Alene Con- sol. & Min. Co. V. Miners' Union of Wardner, 51 Fed. 260; Tem- perton v. Russell [1893], 1 Q. B. 715; Floyd v. Jackson [1895], 11 L. T. 276; Wright v. Hennessev. 52 Alb. Law J. 104 (a case be- 588 RELATIVE BIGHTS. [Cll. 6. fore Baron Pollock) ; Judge v. Bennett, 36 Wkly. Rep. 103; Ly- ons V. Wilkins [1896], 1 Ch. 811. The defendants contend that these acts were justifiable, because they were only seeking to secure better wages for themselves, by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff's premises, as a means of carrying out their con- spiracy. A combination among persons merely to regulate their own conduct is within allowable competition, and is lawful, al- though others may be indirectly affected thereby. But a combina- tion to do injurious acts expressly directed to another, by way of intimidation or constraint, either of himself or of persons em- ployed or seeking to be employed by him, is outside of allowable competition, and is unlawful. Various decided cases fall within the former class ; for example ; Worthington v. Waring. 157 Mass. 421, 32 N. E. 744; Snow v. Wheeler, 113 Mass. 179; Bowen v. Matheson, 14 Allen, 499 ; Com. v. Hunt, 4 Mete. (Mass.) Ill ; Hey- wood V. Tillson, 75 Me. 225 ; Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190 ; Bohn Manuf 'g Co. v. HoUis, 54 Minn. 223, 55 N. W. 1119 ; Steamship Co. v. McGregor [1892], App. Cas. 25; Curran v. Tre- leaven [1891], 2 Q. B. 545, 561. The present case falls within the latter class. Nor does the fact that the defendants' acts might subject them to an indictment prevent a court of equity from issuing an injunction. It is true that, ordinarily, a court of equity will decline to issue an injunction to restrain the commission of a crime ; but a continuing injury to property or business may be enjoined, although it may also be punishable as a nuisance or other crime. Sherrv v. Perkins, 147 Mass. 212, 17 N. B. 307; In re Debs, 158 U. S. 564, 593, 599, 15 Sup. Ct. 900 ; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 329, 2 Sup. Ct. 719; Cranford v. Tyrrell, 128 N. Y. 341, 344, 28 N. E. 514; Gilbert v. Jlickle, 4 Sandf. Ch. 357 ; Port of Mobile V. Lotiisville & N. R. Co., 84 Ala. 115, 126, 4 South. 106 ; Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310; Toledo, A., A. & N. M. Ry. Co. V. Pennsylvania Co., 54 Fed. 730, 744; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 239, 240, 253 ; Hermann Loog V. Bean, 26 Ch. Div. 306, 314, 316, 317 ; Monson v. Tussaud [1894], 1 Q. B. 671, 689, 690, 698. A question is also presented whether the court should enjoin such interference with persons in the employment of the plaintiff who are not bound by contract to remain with him, or with per- sons who are not under any existing contract, but who are seeking or intending to enter into his employment. A conspiracy to in- terfere with the plaintiff's business by means of threats and in- timidation, and by maintaining a patrol in front of his premises, in order to prevent persons from entering his employment, or in order to prevent persons who are in his employment from continu- ing therein, is unlawful, even though such persons are not bound by contract to enter into or to continue in his employment; and the injunction should not be so limited as to relate only to persons Sec. 3 e.] relative rights. 589 who are bound by existing contracts. Walker v. Cronin, 107 Mass. 555, 565; Carew v. Rntherford, 106 Jlass. 1 ; Sherry v. Per- kins, 147 Mass. 212, 17 N. E. 307; Temperton v. Russell [1893], 1 Q. B. 715, 728, 731 ; Flood v. Jackson [18951 ■ H L- T. 276. We therefore think that the injunction should be in the form as orig- inally issued. So ordered. See same case, 44 N. E. 1077, 35 L. R. A. 722; Beck v. Rwy. P. Pro. Union, 77 N. W. 13, 42 L. R. A. 407; Passaic Print Works v. Ely & W. D. G. Co., 105 Fed. 163, 44 C. C. A. 426, 62 L. R. A. 673; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900. See 5 L. R. A. (N. S.) 1091, and note, and at p. 1161, for full discussion of what constitutes enticing, and of the master's reme- dies both at law and in equity. See "Injunctions," Century Dig. § 172; Decennial and Am. Dig. Key No. Series § 99. McGURK V. CRONENWETT, 199 Mass. 457, 85 N. E. 576, 19 L. R. A. (N. S.) 561. 1908. Remedy of Servant Against Intermeddler Who Causes His Master to Discharge Him. [Tort for maliciously causing plaintiff's discharge by his employer. Judgment against plaintiff, and he appealed. Defendant also appealed from an order overruling his demurrer to the second count in the dec- laration. Reversed in part and affirmed in part. The first count alleged that plaintiff was employed by a certain cor- poration at a certain salary, and that defendant "wrongfully, without cause and maliciously" prevented the plaintiff from performing his part of the contract, and, in preventing plaintiff from carrying out his agree- ment, the defendant brought about plaintiff's discharge. The second count alleged that the defendant maliciously induced and persuaded plaintiff's employer to break Its agreement and to discharge the plaintiff. The defendant demurred for that; (1) The first count failed to aver any wrongful word spoken or written, or any act done, by defendant whereby plaintiff was prevented from performing his contract; (2) The first count also failed to set out any word spoken or written by defend- ant, or any act done by him which brought about plaintiff's discharge by his employer; (3) The second count failed to aver any word or act of defendant's causing plaintiff to be discharged; (4) That the declara- tion appears to be intended as an action of slander or libel and yet does not set forth the words, etc.; (5) That the declaration sets forth no ac- tionable words or acts of the defendant; (6) There was no allegation that defendant was not an officer of, or person in authority connected with, the corporation which employed plaintiff; (7) The entire contract be- tween plaintiff and his employer was not set forth. The judge below sustained the 1st, 2nd, 3rd, and 5th grounds of the demurrer, but over- ruled it on the 4th, 6th, and 7th grounds.] Sheldon, J. The judge of the superior court rightly declined to sustain the defendant's demurrer on either one of the fourth, sixth and seventh grounds assigned. It does not appear that the action Vifas intended to be for slander or libel, or for any words or statements uttered or published by the defendant concerning the plaintifiE ; and the doctrine of May v. Wood, 172 Mass. 11, 51 N. E. 191, and Rice v. Albee, 164 Mass. 88, 41 N. E. 122, does not apply 590 RELATIVE RIGHTS. [Cll. 6. here. The rule of those cases ought not to be extended to actions not brought for slander or libel. Nor is it necessary that the contract between the plaintiff and the Standard Plate Glass Company should be set out in full or by copy; its effect, so far as material to the ease, was sufficiently stated. It would make no difference in the defendant's liability, if the charges in the declaration were proved, whether he was a mere stranger to the plaintiff's contract or an officer or representative of the Plate Glass Company. The corporation was in either event a third person within the meaning of I\Ioran v. Dunphy, 177 Mass. 485, 59 N. E. 125, and Bowen v. Hall, 6 Q. B. D. 333. The second count of the declaration set forth a good cause of ac- tion within the rule of Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125, and see the cases there cited. There are no material differ- ences between this count and the one sustained in that case. The count cannot be held bad for the lack of a direct averment that the company did discharge the plaintiff in consecjuence of what de- fendant did, because that is not stated as one of the grounds of demurrer. The averments of the count are somewhat meagre ; but it must be remembered that the defendant has the right to ask for a bill of particulars under R. L. c. 173, § 68. But different considerations apply to the first count. It con- tains no averment that the defendant has committed, any act in itself actionable. The material averment is only that he has "wrongfully, without cau.sc and maliciously prevented the plain- tiff from further ix'rforming his obligation under" a certain agreement of employment, iind thus "brought about the discharge of the plaintiff'." and "caused the plaintiff great damage." There is no averment that the defendant knew of the existence of this agreement, unless that is implied in the word "maliciously." We do not doubt that there is a right of action for purposely and maliciously preventing the performance of a contract, whether of employment or otherwise. "Walker v. Cronin, 107 Mass. 555 ; Beekman v. Marsters, 195 Mass, 205. 80 N. E. 817. But where, as under the count now considered, this is the sole cause of action relied on, it is essential both to aver and prove the defendant's knowledge of the contract in cjuestion. This was the doctrine of both Walker v. Cronin and Beekman v. Marsters, nbi supra, and of Lumly v. G>'e, 2 El. & Bl. 216; and .iustice requires this doc- trine to be upheld. A defendant who has not been guilty of con- duct otherwise actionable ought not to be held liable for having brought about, though wrongfully and without cause, the breach of a contract of which he had no knowledge. It follows accord- ingly that this count is insufficient unless it can be said that the charge that the defendant "maliciously" prevented the plaintiff from performing his obligations imder his agreement necessarily imports an allegation that the defendant knew of the agreement •of which he prevented the performance. In the opinion of the majority of the court this cannot be said. Sec. 3 P.\ EKLATIVE KICHTS. 591 The natural meaning of the word " malicious^ " is "wilfully and intentionally." Commonwealth v. Goodwin, 122 Mass. 19, 35, cited and followed in Commonwealth v. Jones, 174 Mass. 401, 54 N. B. 869. In a capital ease tried before two justices of this court, the jury were told that the malice necessary to constitute the crime of murder meant simply that the act was "wilfully done for the purpose of carrying out the defendant's own ends, regardless of the rights of others;" and this was sustained by the full court. Commonwealth v. Pemberton, 118 Mass. 36, 37, 39, 40, 43. It means an intention to do an act which is wrongful to the detriment of another, according to the language of Bowen, L. P., in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 612, quoted by Lord Watson in Allen v. Flood (1898), A. C. 1, 93, 94; and see South Wales Miners' Federation v. Glamorgan Coal Co. (1905), A. C. 239. So it was said by Bayley, J. in Bromage v. Prosser, 4 B. & C. 247, 255, that "malice in common acceptation means ill wiil against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse." And it was said by this court, speaking through the present chief justice, of the right to dispose of one's labor as he will, that "an intentional interference witli sueli a right without lawful justificdtion, is ma- licious in law, even if it is from good motives and without express malice." Berry v. Donovan, 188 ]\lass. 353, 356, 74 N. E. 603, 604, and see the cases there cited; also those collected in 25 Cyc. 1667. But we liave been referred to no ease, nor have we found any, in which an averment that the act complained of was done maliciously ha.s been held to include an averment of knowledge •of specific facts, when the right of action depended upon such knowledge. It folloM's that in tlie first count of this declaration there is no averment that the defendant had knowledge of the agreement between the plaintiff and the Plate Glass Company ; and the count sets out no cause of action. The judgment entered for the defendant must be reversed ; the the demurrer to the first count must be sustained ; and that to the second count must be overruled. See 5 L. R. A. (N. S.) and note. See. "Master and Servant," Century Dig. § 1286; Decennial and Am. Dig. Key No. Series § 341. Action by the Master for the Seduction of his Female Servant. That a parent, or one standing in loco parentis may recover for the seduction of a female, see eh. 6, § 2 (c). It is frequently stated liy text "writers and in judicial opinions that a master may recover for the seduction of his female servant, but ^\-e have found no case in which a recovery A\-as actually had in such an action unless the plaintiff was not only master but also a parent or one standing in loco parentis. In this connection the following ex- tract from a letter written by Mr. E. D. Smith, of the American Law Rook Company, to the editors, is of interest: "In reply to your question 'Is there any case in the world in which a master, 592 RELATIVE EIGHTS. \Ch. 6. not being a parent, has actually recovered for the seduction cf his female servant.' we would saj^ that an exhaustive search of oar very extensive resources has failed so far to reveal such a ease, ex- cept the case of .^lanvell v. Thomson. 3 C. & P. 303, 304, 31 R. R. 666, English Ruling Cases, volume 27, page 357." But in that case it is expressly stated in the opinion of Abbott, C. J., that the relation of uncle and niece existed and the uncle was in loco parentis: — though the ground of recovery was, that the plaintiff was also the master of the girl seduced, and the loss of her serv- ices resulted from the seduction. (f) Remedy of Third Persons Against the Master for the Acts and Negligence of his Servants. WESSON V. RAILROAD, 49 N. C. 379. 1857. When Trespass Ti Et Armis, and When Trespass on the Case Lies. [Action of trespass q. c. f. for acts of contractors who were construct- ing a railroad for the defendant. There was no evidence that the defend- ant's olHcers eitlier sanctioned or knew of the commission of the acts complained of. Judgment of nonsuit against the plaintiff, and he ap- pealed. Affirmed.] Pearson, J. There is no error. A master is not liable for the wilful trespass of a servant. He is liable in an "action on the case" for an injury, caused by the negligence, or unskilfulness of a servant, while doing his business. This is an action of trespass vi et armis. "There was no evidence that the master sanctioned, or even knew of the tresspass in question." Judgment affirmed. See "Master and Servant," Century Dig. § 1232; Decennial and Am. Dig. Key No. Series § 306. McMANUS V, CRICKETT, 1 East, 106. 1800. Master's LiaMlity for the Wilful Acts of His Servant. [Action of trespass for the wilful driving of a chariot by defendant's servant against plaintiff's chaise. Verdict against the defendant. Motion by defendant to set aside the verdict and enter a nonsuit. On this mo- tion the opinion is written. Nonsuit ordered.] Lord Kenyon. C. J. This is an action of trespass, in which the declaration charges that the defendant with force and arms drove a certain chariot against a chaise in which the plaintiff was riding in the king's highway, by which the plaintiff was thrown from his chaise and greatly hurt. At the trial it appeared in evidence that one Brown, a servant of the defendant, wilfully drove the chariot against the plaintiff's chaise, but that the defendant was not him- self present, nor did he in any manner direct or assent to the act of the servant, and the question is, if for this wilful and designed act of the servant an action of trespass lies against the defendant, Sec. 3 /.] RELATIVE BIGHTS. 593 his master? As this is a question of very general extent, and as cases were cited at the bar, where verdicts had been obtained against masters for the misconduct of their servants under similar circumstances, we were desirous of looking into the authorities on the subject before we gave our opinion ; and after an examination of all that we could find as to this point, we think that this action cannot be maintained. It is a question of very general concern and has been often canvassed ; but I hope at last it will be at rest. It is said in Bro. Abr. tit. Trespass, pi. 435, "If my servant con- trary to my will chase my beasts into the soil of anoth'er I shall not be punished." And in 2 KoU. Abr. 553, "If my servant with- out my notice put my beasts into another's land, my servant is the trespasser and not I — because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so to this purpose they are his beasts. ' ' I have looked into the correspondent part in Vin. Abr., and as he has not pro- duced any case contrary to this, I am satisfied with the authority of it. And in Noy's Maxims, eh. 44, "If I command my servant to distrain, and he ride on the distress, he shall be punished and not I." And it is laid down by Holt, C. J., in Middleton v. Fow- ler, Salk. 282, as a general position, "that no master is chargeable M'ith the acts of his servant but when he acts in the execution of the authority given him. ' ' Now when a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and accord- ing to the doctrine of Lord Holt his master will not be answerable for such act. Svich upon the evidence was the present case; and the technical reason in 2 Roll. Abr. with respect to the sheep ap- plies here ; and it may be said that the servant by wilfully driving the chariot against the plaintiff's chaise without his master's as- sent, gained a special property for the time, and so to that purpose the chariot was the servant's. This doctrine does not at all militate with the cases in which a master has been holden liable for the mischief arising from the negligence or unskilfulness of his servant who had no purpose but the execution of his master's orders ; but the form of those actions proves that this action of tres- pass cannot be maintained : for if it can be supported, it must be upon the groimd that in trespass all are principals ; but the form of those actions shows, that where the servant is in point of law a . trespasser, the master is not chargeable as such ; though liable to make a compensation for the damage consequential from his em- ploying of an unskilful or negligent servant. The act of the mas- ter is the employment of the servant ; but from that no immediate prejudice arises to those who may suffer from some subsequent act of the ssrvant. If this were otherwise the plaintiffs in the cases mentioned in 1 Lord Raymd. 739 (one where the servants of a carman through negligence ran over a boy in the streets and maimed him ; find the other, where the servants of A, with his cart, ran against the cart of B and overturned it, by which a pipe of Remedies — 38. — 594 RELATIVE RIGHTS. \Ch. 6. wine was spilt) ; must have been nonsuited from their mistaking the proper form of action, in bringing an action upon the case, in- stead of an action of trespass ; for there is no doubt of the serv- ants in those cases being liable as trespassers, even though they intended no mischief ; for which, if it were necessary, Weaver v. Ward, in Hobart, 134, and Dickinson v. Watson, in Sir Thomas Jones, 205, are authorities. But it must not be inferred from this that in all cases where an action is brought against the servant for improperly conducting his master's carriage, by which mischief happens to another, the action must be trespass. Michael v. Allestree, 2 Lev. 172, where an action on the case was brought against a man and his servant for breaking a pair of horses in Lin- coln 's Inn Fields, where being unmanageable they ran away with the carriage and hurt the plaintiff's wife, is an instance to show that trespass on the case may be the proper form of action. And upon a distinction between those cases where the mischief imme- diately proceeds from something in which the defendant is himself active, and where it may arise from the neglect or other miscon- duct of the party, but not immediately, and which perhaps may amount only to a non-feazance, we held in Ogle v. Barnes, 8 Term Rep. 188, that the plaintiff was entitled to recover. The case of Savignac and Roome, 6 Term Rep. 125, which was much pressed as supporting this action, came before the court on a motion in ar- rest of judgment ; and the only question decided by the court was, that the plaintiff could not have judgment, as it appeared that he had brought an action on the case for that which in law was a tres- pass ; for the declaration there stated that the defendant by his servant wilfully drove his coach against the plaintiff's chaise. Day V. Edwards, 5 Term Rep. 648, was also mentioned, which was an action on the case, in which the declaration charged the defend- ant personally with furiously and negligently driving his cart, that by and through the furious negligent and improper conduct of the defendant the said cart was driven and struck against plaintiff's carriage ; and on demurrer the court were of opinion, that the fact complained of was a trespass. And in the last case that was men- tioned, Brucker v. Proment, 6 Term Rep. 659, the only point agi- tated was, whether evidence of the defendant's servant having negligently managed a cart supported the declaration, which im- puted that negligence to the defendant ; and the court with reluct- ance held that it did, on the authority of a precedent in Lord Ray- mond's Reports, 264, Turberville v. Stamp. In none of these cases was the point now in question decided ; and those determina- tions do not contradict the opinion we now entertain, which is, that the plaintiff cannot recover, and that a nonsuit must be entered. The principal case is approved in Campbell v. Staiert, 6 N. C. 389, and Parham v. Blackwelder, 30 N. C. 446; but see the subsequent cases in this subsection. See "Master and Servant," Century Dig. §§ 1230-1232; De- cennial and Am. Dig. Key No. Series § 306. Sec. 3 /.] RELATIVE RIGHTS. 595 PIERCE V. RAILROAD, 124 N. C. 83, 94-97, 98, 99, 32 S. E. 399. 1899. Master's Liability for the Wilful and Malicious Acts of His Servant. [Action for damages for the death of a boy. Plaintiff sues as adminis- trator of the deceased boy, under the statute. Verdict and judgment against defendant, and it appealed. Affirmed. Only that portion of the opinion which treats of the wilful and malicious acts of a servant is here inserted. The facts appear in opinion.] Clark, J. . . . We will now consider the second and third prayers for instructions, which were: "(2) If the jury believe that the intestate of plaintiff was killed by the wanton, willful, and malicious act of one of the employes of the railroad company, then the company would not be liable, and the jury should respond to the first issue, 'No.' (3) If the jury find that the intestate's death was caused by the wanton and malicious act of the fireman, and that his act was not done in the furtherance of the business of the defendant, they should find the first issue in favor of the de- fendant, 'No.' " The assumption in these prayers that the de- fendant is not liable if the plaintiff's intestate was killed by the wanton, willful, and malicious act of one of the employes of the defendant, and especially if such act was not done in furtherance of the business of the defendant, cannot be sustained. The true test is, was it done by such employe in the scope of the discharge of duties assigned him by the defendant, and while in the dis- charge of such duties? "In furtherance of the business of em- ployer" means simply in the discharge of the duties of the employ- ment; and the court properly told the jury that the defendant is responsible for the injury, if caused by the wrongful act of the employe while acting in the scope of his employment. In Rams- den V. Railroad Co., 104 Mass. at page 120, Gray, J., says: "If the act of the servant is within the general scope of his employ- ment, the master is equally liable, whether the act is willful or merely negligent (Howe v. Newmarch, 12 Allen, 49), or even if it is contrary to an express order of the master (Railroad Co. v. Derby, 14 How. 468)." The rule is thus laid down in 2 Wood, R. R. (2d ed.) § 316. at page 1404: "Where the act is within tli^- scope of the servant's authority, express or implied, it is imma- terial whether the injury resulted from the result of his negli- gence, or from his willfulness and wantonness. Nor is it neces- sary that the master should have known that the act was to be done. It is enough if it is within the scope of the servant 's author- ity. Thus, where a servant of a railway company, employed to clean and scour its cars and keep persons out of them, kicked a boy 11 years old from a railing while the cars were in motion, whereby he was thrown under the cars and killed, it was held that, the act (although in nobody's line of duty) being done in the course of the servant 's employment, the company was chargeable therefor ; ' ' citing Railroad Co. v. Hack, 66 111. 238, and other cases as authori- ties. Among many other eases almost on "all fours" with the Mti RELATIVE RIGHTS. \Ch. 6. present are Railroad Co. v. Kelly, 36 Kan. 655, 14 Pac. 172, in which it was held that "where a boy 15 years old gets upon a freight train wrongfully and as a trespasser, for the purpose of riding without paying his fare, and is commanded by the brake- man to jump off the train while in dangerous m.otion, in the night- time, and in obedience to that command, and in fear of being thrown off, jumps ofE the train and is run over and injured, the company is liable;" and it is further held that whether the brake- man "acted wantonly and maliciously, or merely failed to exercise due care and caution, the railroad company is liable" for damages resulting from the brakeman's conduct — citing many cases. In Rounds V. Railroad Co., 64 N. Y. 129, the defendant was held lia- ble where the plaintiff jumped upon the platform of a baggage car to ride to a place where the cars were being backed to make up a train (this being against the regulations of the defendant), and the baggage master knocked him off, and in falling he fell upon some wood, rolled under the car, and was injured ; the court hold- ing that, to "make the master liable, it is not necessary to show that it expressly authorized the particular act ; it is sufficient to show that the servant was acting at the time in the general scope of his authority ; and this although he departed from his instruc- tions, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury." In Lovett v. Railroad Co., 9 Allen, 557, it was held that where a boy of ten years old wrongfully got upon a street car, and the driver ordered him to jump off while running at a dangerous speed, the company is re- sponsible for the injuries sustained by the boy in doing so, unless it was found that the injury was caused by the boy's negligent manner of getting off. Another instance of liability for injuries sustained by a trespasser from the servant's violently and forci- bly putting the trespasser off is Carter v. Railroad Co., 8 Am. & Eng. Ry. Cas. 347, which cites numerous precedents of like pur- port. But it is needless to multiply cases. A.11 of them hold that such ejectment is done by the servant in the general scope of his employment, and if done recklessly or wantonly and maliciously, and even if in a manner forbidden by the master's orders, the company is liable for the tortious act. The ground is that the proximate cause of the injury is not the trespasser's wrongfully gettin,^ ou the cars, bat the tortious manner in which the servant makes him get off' and that, this act being in the general scope of the servant's employment, the master is liable. In the present ease, Avhether the child jumped off because ordered by the brake- man, or by reason of the hint of a lump of coal whizzing by his head, or was actually struck and knocked off, this mode of getting him off the moving car was tortious, and the defendant is liable for the injury caused thereby. 14 Am. & Eng. Enc. Law, 822, 823, and cases cited in the notes thereto; Pierce, R. R. 278, 279; Kline v. Railroad Co., 99 Am. Dec. 282, and notes; Peck v. Rail- road Co., 70 N. Y. 587; Railway v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286. Coal Co. v. Heeman, 86 Pa. St. 418, was a case ex- actly like this, — where the evidence was that a brakeman, by Sec. 3 /.] RELATIVE RIGHTS. 397 throwing coal at a boy who was wrongfully on a moving traia, caused him to fall ; and it was held that the company was liable in damages for the injury. The defendant, however, earnestly contends that, if the servant's act was malicious, the company is not liable for negligence. If that theory ever obtained, the above authorities show that it was contrary to reason, and has been duly and fully exploded. The company is not charged in this case with malice because of the alleged malice of its agent, and whether it could be held liable for punitive damages is not before us. It is certainly liable for compensatory damages for the injury sustained from the tort of its servant. . . . [PACTS.] Here the plaintiff's intestate was admittedly run over and killed by the defendant's train. Upon the uncontro- verted facts of this case, the brakeman, as a matter of law, was acting in the scope of his general employment; and the court properly instructed the jury that if the boy was made to get off the ear (though he was on there wrongfully) by the act of the brakeman, whether malicious or not, while the train was moving, so that the boy was killed in consequence of so doing, the defend- ant was liable for the damage caused by the negligent conduct of its lessee in thus operating its train. . . A careful considera- tion of the charge shows, besides, that there is no error therein of which the defendant could complain. Affirmed. That the law is stricter upon railroad corporations than upon other employers, in the matter of liability for the wilful, wanton, and mali- cious acts of their servants, is shown in Stewart v. Lumber Co., 146 N. C. 47, 59 S. E. 545, and cases there cited. That case limits the master's liability to actual damages where the servant's act is wanton, wilful, etc.; but compare 10 L. R. A. (N. S.) at p. 403. That the servant must be "on duty" at the time of the wilful, wanton, etc., act, is held in Cook v. R. R., 128 N. C. at p. 336, 38 S. E. 925; Palmer v. R. R. & Elec. Co., 131 N. C. 250, 42 S. E. 604; Jones v. R. R., 150 N. C. 473, 64 S. E. 205. See, also, for a discussion of the master's liability for the wilful and malicious acts of his servant, 26 Cyc. 1527; Mordecai's L. L. 81-85. See 4 L. R. A. (N. S.) 485, 6 lb. 567, 9 lb. 475, 929, 12 lb. 1155, 13 lb. 1193, 18 lb. 297, 418, 22 lb. 527, and notes (liability of the master for unauthorized as- saults, trespasses, slanders, etc., committed by his servant wilfully and maliciously, or In sport; and for the unauthorized and excessive force used by his servant in doing authorized acts) ; 9 lb. 1033, 14 lb. 216, and notes (liability of the matser for his servant's negligence, etc., in using an automobile, etc., of the master for the servant's own business or pleasure); 10 lb. 367, 933, and notes (master's liability to third persons for injuries resulting from his servant's negligent use of dangerous in- strumentalities, commodities, etc., placed in his hands by the master); 13 lb. 1132, 6 lb. 544, 4 lb. 651, 13 lb. 572, 10 lb. 933, 23 lb. 289, 1056, and notes (liability of the master for his servant's negligence, etc., in the rule which holds the master liable for the torts of his servant) ; 1 lb. 283, 3 lb. 595, 13 lb. 1122, 1177, 14 lb. 913, 16 lb. 255, 816, 17 lb. 370, 788, and notes, 20 lb. at p. 547, 147 N. C. 26, 150 N. C. 333, Morde- cai's L. Li. 79-81 (independent contractor as distinguished from serv- ant); 12 lb. 669, 775, and notes (will an action lie against both master and servant^as joint defendants — for the servant's torts?). See "Rail- roads," Century Dig. §§ 906, 907; Decennial and Am. Dig. Key No. Se- ries § 281. 598 TANGIBLE PERSONAL PROPERTY. [C'h. 7. CHAPTER. VII. INJURIES TO TANGIBLE PERSONAL PROPERTY. Sec. 1. Replevin, Detinue, and Allied Remedy in Equity. (See eh. 4, § 3. d. e.) SCOTT V. ELLIOTT, 61 N C. 104. 1867. Who Can Maintain Replevin. [Replevin for a steamboat. Upon an intimation of the judge, the plaintiff submitted to a nonsuit and appealed. Reversed. A sheriff sold the steamboat under an attachment. The plaintiff bought it with the understanding that if the sale was not valid he would return the boat to the sheriff. The plaintiff hired Williams to take the boat to Fayetteville and placed the boat in Williams' posses- sion for that purpose. The sale was judicially determined, in another action, to be invalid. The defendant got possession of the boat and re- fused to surrender it to the plaintiff. The judge ruled that, as the sale to the plaintiff was invalid, the plaintiff had no title or interest which would sustain his action of replevin against the defendant.] Pearson, C. J. One who has possession of a chattel for him- self, in respect to either a special or general property, may main- tain replevin or trover. One who has possession of a chattel for another, and not for himself, cannot maintain an action. This rule is settled, and the only difficulty is in making its application. Our case falls under the first hranch of the rule, as will be made apparent by citing a few insstances under each. A common carrier has possession for himself in respect to his special property, and may maintain an action. So one who hires or borrows a horse is in possession for himself in respect to his special property. Such is the case in every bailment, and an ac- tion lies in the name of the bailee, and an indictment for larcen\- may lay it as his property. On the other hand, an overseer holds possession for his employer and not for himself, and cannot main- tain an action. So one who is driving the wagon of another is not in possession for himself, but as the servant of the other. His possession is that of the man who hired him to take charge of the wagon. Such was the status of Williams in our case. He was the mere servant of Scott, and his possession was Scott's pos- session. So, if the sheriff making a levy puts the property in charge of a third person, who is to deliver it on the day of sale, that person is considered as a mere servant holding possession iS'cc. 1.] TANGIBLE PERSONAL PROPERTY. 599 for the sheriff, and having no general or special property in himself. Such is the case in 9 Mass. lO-i, and the other cases cited on the argument. In our case the sheriff sold the steamer to Scott, and put her in his possession, with the understanding that if the sale was not valid, he would return her to the sheriff'. Obviously Scott did not take possession for the sheriff, but for himself in respect to the general ownership which he supposed he had acquired. The character of his possession was not at all affected by the under- standing as to the return of the steamer. The suit in which the validity of the sale is put in controversy was not decided until December Term, 1860. So, from the time of the sale, 1857, up to 1860, Scott was holding possession "for himself." During this time the sheriff' had no right to take the boat from him. This is the test to show that he was not the servant of the sheriff. Sup- pose one hires my horse for a year; but agrees to return him be- fore the end of the year on the happening of a contingency. Will any one say that he is my servant, and is holding possession for me and not for himself? There is error. Replevin does not lie against one who was not in possession when the summons was issued. Myers v. Credle, 63 N. C. 504; Webb v. Taylor, 80 N. C. 305. It lies for a house severed from the owner's land, so long as the house remains a chattel after the removal. Fitzgerald v. An- derson, 81 Wis. p. 344, 51 N. W. 554, and see Ins. Co. v. Cronk, 93 Mich. 49, 52 N. W. 1035, and Turner v. Mebane, 110 N. C. 413, 14 S. E. 974, inserted at ch. 3, s. 8. It was held in Eisenhauer v. Quinn, 93 Pac. 38, 14 L. R. A. (N. S.) 435, that replevin lies for a house tortiously taken from the land of A, and permanently fixed to the land of B. See the case at ch. 3, sec. 8, ante. That detinue lies for a certain quantity out of a large bulk, see Boone V. Darden, 109 N. C. 74, 13 S. B. 728. See "Replevin," Century Dig. §§ 45-68; Decennial and Am. Dig. Key No. Series § 8. CROUCH v. MARTIN, 3 Blackford, 256. 1833. Who Can Maintain Detinue. [Detinue by Martin against Crouch for unlawfully detaining a mare to his damage. Crouch pleaded non detinet. Verdict: "We find the property to be in the plaintiff and the value thereof to be sixty dollars." Motion in arrest of judgment. Motion overruled, and judgment against Crouch, from which he appealed. Reversed.] Stevens, J. . . The only question before this court is, whether the verdict is sufficient to authorize the rendition of final judgment for the plaintiff. The issue in this case is, whether the defendant unlawfully de- tained the property of the plaintiff as stated in the declaration. The gravamen of the issue is the detention. The plaintiff, to re- cover, had to prove three things, — 1, property in himself; 2, an unlawful detention by the defendant ; and 3. the value. The jury have found but two of these facts. They have found the prop- 600 TANGIBLE PERSONAL PROPERTY. [Ch. 7. erty to be in the plaintiff, and its value ; but the unlamful deten- tion thereof, which is the main and principal point in issue, they have not found. A verdict must answer all the material points in issue ; but a general verdict, that in substance covers the whole, is sufficient; as in this case^ if the jury had simply found for the plaintiff, and found the value of the property, etc., it would have been suffi- cient ; for the finding for the plaintiff would have been, substan- tially, finding property in the plaintiff, and the unlawful deten- tion of it by the defendant; but as it is, it is wholly defective. The judgment should have been arrested. Judgment reversed. See "Detinue," Century Dig. §§ 4-11, 44; Decennial and Am. Dig. Key No. Series §§ 3-6, 24. BRILEY V. CHERRY, 13 N. C. 2. 1828. Effect of Judgment in Detinue and Trover upon the Title to the Subject- matter. [Detinue for a slave. Verdict and judgment against plaintiff, and he appealed. Affirmed. Defendant pleaded title in himself under an execution sale against Jackson. The plaintiffs claimed under a judgment in their favor in an action of detinue against Jackson, and showed that defendant pur- chased during the pendency of that action. The judge charged that the fact that defendant bought pending that action did not affect his title.] Henderson, J. A verdict and judgment in an action of de- tinue are conclusive as to the title between the parties and their privies. And I think that the action of detinue is an affirmance of a continuing title to the thing detained, and that the plaintiff does not, as he does in an action of trover, disaffirm a continu- ance of title in himself, but may sustain an action for the same chattel against a third person, or even against the same party, although he may have obtained judgment for it before, provided that judgment has not been satisfied ; and I am at a loss to under- stand the case of Wethers v. Wethers, cited at the bar, where the executor of a former plaintiff brought an action of detinue against the executor of a former defendant, in which the plain- tiff had recovered the same slave, and offered that verdict and judgment as evidence of title, which was rejected; because, as is said by the court, it was not declared on. I think that it was evidence of title as much as a bill of sale. And a plaintiff in such ease, and in fact in every other, declares not upon the evidence, but upon the fact. Privies in estate are those who come in under the owner, and the estate stands burthened in their hands with those incumbrances created by him before he parted with it. Therefore, if a suit was pending against him for the property when he parted with it, in which there afterwards was a judg- ment, that judgment relates to the commencement of the suit, and binds subsequent purchasers. But one who comes in under a sheriff's sale at execution can- Sec. 1.] TANGIBLE PERSONAL PROPERTV. 601 not be called a privy, for he is not only clothed with the title of the defendant in the execution, but also with the rights of the creditor, which may be paramount to those of the debtor quoad the thing sold. It is to his rights also that such purchaser suc- ceeds, and therefore he is not privy in estate to the former owner. The verdict and judgment in this ease, therefore, are not evi- dence against the defendant. Judgment affirmed. See "Execution," Century Dig. § 826; Decennial and Am. Dig. Key No. Series § 288; "Lis Pendens," Century Dig. § 51; Decennial and Am. Dig. Key No. Series § 25. BETHEA \ . McLENNON, 23 N. C. 523, 530-533, 534. 1841. Detinue. Destruction of the Suiject-matter, by Act of God, Pendente Lite. Detinue and Trover Distinguished. When Optional with Plaintiff to Bring Detinue or Trover. [Detinue for sundry slaves. One of the slaves died pendente lite, and that fact was pleaded puis darrein continuance. Whether this was a good defense was, by agreement, submitted to the supreme court, along with certain errors assigned in an appeal. Plea sustained.] Gaston, J. . . "We see no sufficient reason wliy the death or destruction of the goods demanded may not be pleaded to so much of the action as demands the goods, if in law such destruction is an answer to that claim. Upon principle, it seems to us that a destruction by the act of God is in law an answer thereto. The action of detinue affirms a continuing property in the plaintiff in the goods demanded, and alleges the wrong to consist in withhold- ing from the plaintiff the possession thereof. "When the goods cease to be, the property of the plaintiff therein ceases. He has no right to their possession ; and upon this appearing, the law would be absurd in awarding that therefore the plaintiff do recover the said goods, or the said sum for the value thereof if they may not be had. The act of God does injury to no man. "When a thing ceases to be, because of a dispensation of Providence, there may be loss, but there is no injury ; and this loss falls upon the owner of the property. "We know of no instance where the law interferes to throw the loss from him upon others, where it is not attributable to culpable act or negligence. Then it is not a mere loss, but an in- jury; and the wrongdoer is justly answerable for it. There is a marked distinction between the action of detinue and that of trover, though, in many cases, it is at the option of the plaintiff to bring which he will. The former asserts a continuing property in the plaintiff, and alleges the wrong to consist wholly in the withholding of the possession of his goods from him by his bailee; while the latter affirms that although they were once the proper goods of the plaintiff, they have been made the goods of the defendant, and complains of the injury caused by this conversion. If, after being thus converted the goods perish by unavoidable accident, the loss falls upon the defendant, who has made them 602 TANGIBLE PERSONAL PBOPERTY. \C'h. 7. his; and this misfortune shall not exonerate him from answering for the \\rongful conversion. If not converted, but remaining in the hands of a bailee, they there perish, the loss is the misfortune of the owner, and the bailee is answerable for the wrong detention. In asserting the value of the goods, in an action of detinue, the jury is to find the present value. This is manifest from the form of the writ of inquiry, which issues where there has been a judg- ment for the plaintiff on non sum informatus, nil dieit, or demur- rer — from the form of the verdict, Avhere the jury find the vahie on the trial of an issue, and from the terms of the final judgment. It is required, too, by obvious reasons of propriety. Great altera- tions may happen in the value of the things demanded, pending the action ; and the object of the action (so far as regards the things themselves) is to regain them, such as they are, or, if that may not be do'ne, then their value. If, in the course of a tedious action, a puny slave child has grown up to vigorous manhood, it would be a poor substitute for the slave himself to give the value of what he was, when the action was instituted. If, on the con- trary, a vigorous, healthy slave has been rendered valueless by sickness and decrepitude, it would be unconscientious to set upon him more than a nominal value. How ought the slave to be valued that is no more ? If he were on the brink of the grave at the time of the trial, the jury would discharge their duty by valuing him at five cents ; but if it is shown that, before the trial, he had fallen into the grave, is he to be paid for as of full health and vigor? Is there not an absurdity in affixing any value to what is judicially ascertained not to exist? Certainly when a man detains, without just cause, the goods of another, he ought to be answerable to the full extent of the injury thereby inflicted. And so he is rendered through a judgment of damages for the wrong, if the wrong be one of detention merely. But if the injury is not only a wrong of detention, but of conver- sion, let him then pay also the value of the property converted. "Where the owner, by reason of such detention, has been deprived finally of the thing detained, as by voluntary destruction or through culpable negligence of the bailee, it is not very material in what form the plaintiff gets his recompense ; but he is not wholly compensated, unless he obtains both its use while detained and its value. But when such injury has not been inflicted, he is compen- sated by being paid for the wrong of which alone he can complain. It is not undeserving of consideration, also, that in many eases ac- tions of detinue are brought to try some of the most difficult ques- tions of title to slaves, and when both parties are equally conscien- tious in asserting a claim thereto. If, in all cases, the holder is not only to be liable, in the event of failure, for hire, while they are in his possession, bat also to be insurer of their lives, we drive him to the often inhuman alternative of making the most of them by sale, instead of keeping them to abide the fair result of the con- test. In this case, it would be manifestly unjust, because of a mere mistake of title, to make him responsible for an act of Providence, Sec. 1.] TANGIBLE PERSONAL PROPERTY. 603 which no prudence could avert, and Avhich would probably have occurred had the possession been with his adversary. It is enough that using the property humanely and prudently, he account for the use of it while in his possession, and deliver it up, if it exist, when the controversy is decided against him. It would have been a great relief to us could we have found any authorities in point, to guide us in this inquiry. But it is extraordinary how little is to be found in the law books bearing directly upon this subject. The action of detinue, by reason that wager of law was permitted in it, has almost become obsolete in England — though very recently there are indications of a disposition to revive it. . After much consideration, our. opinion is, that the defendant may be permitted to plead in an action of detinue, as a plea since the last continuance, the death of a slave named in the declaration , and upon such plea being found true, there is to be no assessment of the value of the said slave in the verdict, and the plaintiff shall have judgment for damages only because of the detention; that when such death has happened while the slave was in the defend- ant's possession, and without his fault, the jury should be in- structed not to include any part of the value of the slave in the estimate of damages; but if it has happened because of ill-treat- ment, or culpable neglect, or after a disposition of the slave by the defendant, that they be instructed that they may include the va'ue in such estimate; and it is further our opinion, that to prevent surprise, evidence ought not to be received of the alleged death, unless the matter be specially pleaded as aforesaid. The plea may be received, if properly verified, at any moment before the verdict is rendered. 1 Chit. PI. 698. But notwithstanding the opinion which we entertain on this question, for the reasons heretofore mentioned, the judgment of the superior court must be affirmed with costs. See "Detinue," Century Dig. §§ 28, 29; Decennial and Am. Dig. Key No. Series § 17. HOLMES V. GODWIN, 69 N. C. 467, 472. 1873. Detinue and Claim and Delivery the Same. General Practice. Form of Judgment. Damages. Return of Subject-matter. [Claim and Delivery for corn in a crib. Verdict and judgment against the plaintiff, and he appealed. Reversed. Plaintiff claimed the corn as rent due to his intestate. The corn was taken under the fiat of the clerk in the ancillary proceeding of claim and delivery. The defendant set up as a counterclaim that the corn so seized was in his possession as bailee, and hence was wrongfully taken from him by the plaintiff. He also denied that any rent was due to plaintiff's intestate. The jury found for the defendant and fixed the quantity and value of the corn seized.] EoDMAN, J. . . . We now take up the main exception of the plaintiff, viz. : That the jury, under the instructions of the court, assessed the value of the property at the time it was taken into 604 TANGIBLE PERSONAL PROPERTY. [('Jl. 7. possession by the plaintiff, and not at the time of the trial. We think the judge erred in this respect. . . . Replevin (and the action of claim and delivery is but a longer name for the same thing), is founded on the right of the plaintiff to the possession of the property. If the defendant also claims the possession, the main issue is on that right, and the part>- estab- lishing it will have judgment to retain or to be restored to the pos- session, as the case may be. To avoid confusion, we will confine ourselves to a case like the present, where the plaintiff obtained the possession, but failed to establish his right to it. In such case it was the right of the defendant to have judgment for the return of the property in specie, if such return could be had, or if it could not be, then for the value of the property. And it is equally the right of the plaintiff to return the property in specie, if he can. It follows that the value must he assessed as at the time of the trial, for the value is only to stand in lieu of the property, in case it shall turn out that it cannot be returned ; and the plaintiff can- not compel the defendant to accept the assessed value if he can re- turn the property in .specie; nor can the defendant compel the plaintiff to pay the value, if he offers to return the property. This is so, notwithstanding any deterioration in the article by decay, or external injury, or fall in price, so long as it remains in specie. Probably if it appeared on the trial that the property had been destroyed, so that it could not be returned in specie, the jury would be justified in so finding, and in giving the value of the property at the time of the taking and interest thereon, as damages for tli^ taking and detention. But that was not the case here. But it does not follow that the owner is to accept the property (deteriorated perhaps) in satisfaction of the injury. He is entitled to full in- demnity. After finding the value of the property, the jury should proceed to find the damages resulting from the taking and deten- tion — an element of which is the difference in the value between the time of taking and the time of the trial. Rowley v. Gibbs, 14 Johns. 385 (that is, provided the value be less at the latter time ; if it be greater, the rule would be different ; but it is unnecessary to consider that case, except to exclude it from the rule). The jury may, if they think proper, add to this, damages on the basis of in- terest on the value of the property during the detention, although the calculation need not always be on the basis of interest, and in many eases would not properly be. Judgment reversed, and ve- nire de novo. It would seem that mental anguish is not an element of damages in an action for the unlawful seizure and detention of pigs and yearlings. Chappell V. Ellis, 123 N. C. 259, 31 S. B. 709. See "Replevin," Century Dig. § 405; Decennial and Am. Dig. Key No. Series § 103. (SVr. 1.] TANGIBLE PEKS(JNAL PROPERTV. 605 "WILSON V. HUGHES, 94 N. C. 182. 1886. Claim and Delivery Under the Code Practke. Counterclaim. [Action to recover possession of a horse. The defendant admitted the title to the horse to he in the plaintiff, but denied the unlawful posses- sion and holding thereof by defendant, and set up as a counterclaim damages arising from alleged fraud and deceit practiced upon defendant by the plaintiff in the sale of the horse in controversy to the defend- ant. Plaintiff held a mortgage on the horse for the balance of the pur- chase money. Several questions arose in the case, but only a portion of the opinion is here inserted to show the nature of claim and delivery- proceedings.] Merrimon, J. We observe that this is called an "action of claim and delivery." Properly and strictly speaking, there is no such action. The action commonly so called is an action to recover the possession of personal property — some specific chattel — and is of the nature of the action of detinue under the common law method of procedure. "Claim and delivery of personal property" is a provisional remedy, incident and ancillary, but not essential to the action. The ob.ieet of such incidental provision is to enable the plaintiff, upon giving an undertaking in double the value of the property in question, with approved security, as required by the statute, to obtain the immediate possession of the same, unless the defendant shall give a similar undertaking and security for its de- livery to the plaintiff, if it shall be so adjudged, and for the pay- ment of such costs as may be adjudged against him in the action. Thus the property, or the value of it, is made secure pending the action, in such way as to answer the purpose of the final judgment. This provisional remedy is peculiar to the Code method of proce- dure, and gives the action something of the nature of the action of replevin at the common law. "Claim and delivery" of the property may be omitted, and the action may be simply to recover the possession of the specific chattel, as in detinue, or to recover the value of the property, as in trover or trespass. In any case, it is incident to an action, and provisional only. The Code, §§ 321- 333 ; Jarman v. Ward, 67 N. C. 32 ; Alsbrook v. Shields, Ibid. 333 ; Hopper V. Miller, 76 N. C. 402. The court very properly refused to give judgment for the plain- tiff upon the pleadings, because, while the defendant in his an- swer admitted the allegations of the complaint, except so much thereof as alleged the unlawful possession and detention of the property in controversy, he alleged a counterclaim, and the plain- tiff's reply to the same raised issues of fact to be tried by a jury. The defendant alleged in his counterclaim that the plaintiff, for the consideration specified, sold and delivered to the defendant, some time before the bringing of the action, a mare, the subject of the action, representing her to be sound in all respects, and giving his warranty to that eft'ect ; that afterwards he discovered that the mare was very unsound and of little value, and this the plaintiff well knew at the time he made the false and fraudulent represen- 606 TANGIBLE PERSONAL PROPERTY. [CIl. 7. tations of soundness to the defendant; and that he was thereby greatly damaged, etc. This alleged claim, if well founded, ex- isted in favor of the defendant and against the plaintiffs, and there might be a several judgment as between them in respect thereto. It arose out of the transaction set forth in the complaint, as the foundation of the plaintiff's claim, and was connected with the subject of the action. It mieht well be pleaded as a counterclaim. The Code, § 244; Bitting v.^Thaxton. 72 N. C. 54; Walsh v. Hall, 66 N. C. 233 ; Hurst v. Everett, 91 X. C. 399. . Reversed. See "Replevin," Century Dig. § 106; Decennial and Am. Dig. Key No. Series § 12. WEBB V. TAYLOR, 80 N. C. 305. 1879. Detinue and Claim and Delivery Under the Code Practice. [Action to recover possession of a mule. Demurrer by defendant. Demurrer overruled, and defendant appealed. The facts appear in be- ginning of the opinion.] Smith, C. J. This action is brought under C. C. P., Title IX, ch. 2, §§ 176-187, to recover possession of a mule. The complaint alleges the taking of the mule from the plaintiff by the defendant Taylor, his subsequent selling to the defendant Haysty, and the possession of the latter. The defendant Taylor demurs to the complaint, for that it does not show possession in him ; and his co- defendant answers. On the hearing of the demurrer it was over- ruled and Taylor appeals. We think there is error in the ruling of the court, and that upon the pleadings unamended the demur- rer ought to have been sustained. The gist of the action is the wrongful withholding of the plain- tiff's property, and the remedy sought, its restoration to the owner with damages for the detention. It resembles, and under the nevr system is substantially a substitute for, the forms of detinue and replevin in use under the old system of practice, and affords the same measure of relief. Possession must be averred and shown to be in the defendant, or that he retains such control over the prop- erty, if in the hands of his bailee or agent, that it can be surren- dered to the plaintiff if the court shall so adjudge. The authori- ties cited in the argument for the appellant clearly establish this proposition. Jones v. Green, 20 N. C. 488; Charles v. Elliott, 20 N. C. 606; Foscue v. Eubank, 32 N. C. 424. In Slade v. Washburn, 24 X. C. 414. it was held that a joint ac- tion of detinue would not lie against two persons who took certain slaves from the plaintiff at one and the same time, one defendant being in possession of a part of the slaves, and the other defendant being in possession of the other slaves ; though an action of trespass could be maintained against both. The same principle is applied to the action prescribed in the Code in Haughton v. Newberry, 69 N. C. 456. In that case the plaintiff sued to recover a boat which the defendant had sold to another person before the action was commenced, and it was decided that as the boat was not in the t^f'C. ].\ TANGIBLE PERSONAL PROPERTY. 607 possession nor under the control of the defendant, the plaintiff could not recover in this form of proceeding. In delivering the opinion of the court, Pearson, C. J., says: "In face of the fact that the defendant did not have possession at the time of the commencement of the action, as a matter of course the plaintiff was not entitled to the judgment demanded in the complaint ; ' ' and he adds, "that instead of demanding judgment for the recovery of the possession of the boat he ought to have demanded judgment for the value of the boat, by way of damages, as in an action of trover, and thereupon asked leave to amend the complaint so as to conform it to the proof, which would have been allowed without costs as the defendant could not have been misled by the mis- prision. C. C. P- §§ 128, 129, 132. But instead of this he t>,kes an appeal for the supposed error in ruling that, as the pleading then stood, the plaintiff could not recover." Not only does the plaintiff here fail to allege any separate pos- session in the appellant or any common possession in both defend- ants, but his complaint shows that the appellant had sold the mule to the other defendant and had no control over him. T^pon these allegations the plaintiff could not maintain his action against the appellant alone, nor with any more reason against him, when asso- ciated in the action with one who may be liable. His defense is several and equally available in either case. The judgment must be reversed. . . . See Jarman v. Ward, 67 N. C. 32, inserted at ch. 11, sec. 2, post. That claim and delivery is an ancillary remedy and not the principal action nor an essential to the action of detinue, see Wilson v. Hughes, 94 N. C. 182, next preceding, and Hargrove v. Harris, 116 N. C. 418, 21 S. E. 916, which says, "there is no such thing as an action for claim and delivery." After obtaining possession of the subject-matter of the action by the ancillary proceeding of claim and delivery, the plaintiff will not be per- mitted to take a nonsuit and retain the property. Should he abandon his action, the defendant will be awarded a writ of restitution along "'ith other relief which will be afforded him. Manix v. Howard, 82 N. C. 125. Detinue and claim and delivery lie against a sheriff who seizes the property of one not the defendant in execution. Smithdeal v. Wil- kerson, 100 N. C. 52, 6 S. E. 71. The venue in detinue and claim and delivery is regulated by Revisal, sec. 419. (4"), which differs from the statute in force when Smithdeal v. Wilkerson, supra, was decided. Brown v. Cogdell, 136 N. C. 32, 48 S. E. 515; see Pell's notes to Revisal, sec. 419, (4). For Replevin, Detinue, and Claim and Delivery, in sun- dry instances, see 1 L. R. A. (N. S.) 474, 6 lb. 556, and notes (against purchaser of goods with fraudulent intent not to pay for them, etc.; same point, Wilson v. White, 80 N. C. 280, Mcintosh Cont. 297, and note); 8 lb. 448, 10 lb. 810, and notes (against fraudulent purchaser's vendee); 17 lb. 1032, and note (against fraudulent purchaser's assignee in bankruptcy); 13 lb. 413, and note (for chattels sold under mistake as to purchaser's identity; same, Newberry v. R. R. 133 N. C. 45, Mcin- tosh Cont. 268); 11 lb. 948, and note (for chattels sold upon cash terms— effect of delay in bringing such action) ; 3 lb. 138, and note (for a promissory note); 20 lb. 507, and note (for title deeds to land; same point, Pasterfield v. Sawyer, 132 N. C. 258, and 133 N. C. 42); 23 lb. 144, and note (bringing action for the price as waiver of the right of vendor in conditional sale to recover the property in specie). See "Replevin," Century Dig. §§ 69-82; Decennial and Am. Dig. Key No. Series § 9. 6U« TANGIBLE PERSONAL PROPERTY. [Ch. 7. DUKE OF SOMERSET v. COOKSON, 3 Peere Williams, 390. 1735. Remedy in Equity for the Recovery of Chattels. The Duke of Somerset, as lord of the manor of Corbridge, in Northumberland, was entitled to an altar piece made of silver, re- markable for a Greek inscription and dedication to Hercules. His grace became entitled to it as treasure trove within his said manor. This altar piece had been sold by one who had got the possession of it, to the defendant, a goldsmith at Newcastle, but who had no- tice of the duke 's claim thereto. The duke brought a bill in equity to compel the delivery of this altar piece in specie, undefaced. The defendant demurred as to part of the bill, for that the plain- tiff had his remedj' at law, by an action of trover or detinue, and ought not to bring his bill in equity ; that it was true, for writings savouring of the realty a bill would lie, but not for anything merely personal, any more than ifwould for a horse or a cow. So. a bill might lie for an heirloom, as in the case of Pusey v. Pusey, 1 Vem. 273. And though in trover the plaintiff could have only damages, yet in detinue the thing itself, if it can be found, is to be recovered ; and if such bills as the present were allowed, half the actions of trover would be turned into bills in chancery. On the other side it was urged, that the thing here sued for, was a matter of curiosity and antiquity ; and though at law, only the intrinsic valvie is to be recovered, yet it would be very hard that one who comes by such a piece of antiquity by wrong, or it may be as a trespasser, should have it in his power to keep the thing, pay- ing only the intrinsic value of it; which is like a trespasser's forc- ing the right owner to part with a curiosity, or matter of antiquity, or ornament, nolens volens. Besides, the bill is to prevent the de- fendant from defacing the altar piece, which is one way of depre- ciating it ; and the defacing may be with an intention that it may not be known, by taking out, or erasing some of the marks or fig- ures of it ; and though the answer had denied the defacing of the altar piece, yet such answer could not help the demurrer ; that in itself nothing can be more reasonable than that the man who by wrong detains my property, should be compelled to restore it td me again in specie; and the law being defective in this particular, such defect is properly supplied in equity. AVherefore it was prayed that the demurrer might be overruled, and it was overruled acordingly. [Talbot, Ld. Ch.] "With respect to other chattel property, justice may he clone at law by damages, and therefore equity will not interpose: but for a faithful or family slave, endeared by a long course of service or early association, no damages can compensate — for there is no standard by which the price of affection can be adjusted, and no scale to graduate the feelings of the heart." Taylor, C. J., in Williams v. Howard, 7 N. C. at p. 80. The principal case and Williams v, Howard are referred to with approval in Paddock v. Davenport, 107 N. C. at p. 716, 12 S. E. 465. For further in- formation on the question decided by the principal case, see 6 Pom. Eq. Jurisp. (Eq. Rem. vol. 2), p. 1263, sec. 748, notes and cross references. Sec. 2.] TANGIBLE PERSONAL PROPERTY. -609 The Pusey horn case mentioned in Paddock v. Davenport, is Pusey v. Pusey, 1 Vern. 273. That slaves came within the rule, see cases in 6 Pom. Eq. Jur. at p. 1264, note. For the rule in equity as to chattels generally, see Pom. Spec. Perf. Cent. sees. 11-15, and notes; 26 Am. & Eng. Enc. L. 103; 16 Cyc. 49. See "Equity," Century Dig. § 39; Decen- nial and Am. Dig. Key No. Series § 17. Sec. 2. Trover. OLIVANT V. BERING, 1 Wilson, 23. 1743. The Relief Afforded in Trover. In trover for some pictures, it was moved that plaintiff should be obliged to take the pictures and costs, upon an affidavit that they are all the goods that the defendant has of the plaintiff's, and that not denied; but per curiam, this action is for damages, and j^ou cannot oblige the plaintiff to accept the thing itself. (In Bux- ton and Gabell, Trin. 9 Geo. 1, trover for a ring; and Pas. 9 or 10 Geo. 2, in trover for goods, this court refused the like motion.) The ruling in the principal case applies to actions in the nature of trover under the Code practice. Stephens v. Koonce, 103 N. C. 266, 9 S. E. 315. See "Trover and Conversion," Century Dig. § 309; Decennial and Am. Dig. Key No. Series § 69. BOYCE V. WILLIAMS, 84 N. C. 275. 1881. Trover and Trespass Distinguished. Who May Maintain Trover. Title of Plaintiff. Title in Third Person as a Defense. [Action to recover the value of cattle taken hy defendant from the plaintiff and converted to defendant's use. Verdict and judgment against defendant, and he appealed. Reversed. The defendant justified taking the cattle by putting in evidence a mortgage to Harper Williams from plaintiff's father, executed while such mortgagor owned the cattle. The validity of the mortgage was denied by the plaintiff. The court charged that, even if the mortgage were valid, the defendant was not justified in taking the cattle, because he showed no authority from the mortgagee, Harper Williams, so to do, nor did he show any right in himself.] Smith, C. J. . . The action is for property taken and converted to the defendant's use, and not for damages for an in- vasion of the plaintiff's possessory right, and under the former practice would in form be trover instead of trespass. The action of trespass is for an injury to the possession, and compensation in damages is recovered against a wrong-doer, commensurate with the injury sustained. In either form of action, possession of personal goods, being presumptive evidence of title, when not rebutted, en- titles the plaintiff to' recover in damages their full value. But when the action is for the conversion, or appropriation of the Remedies — 39. 610. TANGIBLE PERSONAL PROPERTY. [C'Jl. 7. goods to the defendant's own use, it is a full defense to show that the goods belong to another person, and the plaintiff has no in- terest in them, although no privity be shown to exist between such owner and the defendant. This doctrine is settled by two adjudi- cations in this state, to which alone we deem it necessary to refer. In Laspeyre v. McFarland, 4 N. C. 620, the action was in trover for a slave in possession of the plaintiff. The defendant showed no title in himself, but offered in evidence a marriage settlement en- tered into between the plaintiff and his wife and one Davis whereby the slave was conveyed to the latter, as trustee to permit the wife to have the labor and profits of the slave and to allow the slave to be under plaintiff's control. In the superior court upon these facts appearing the plaintiff was nonsuited. In this court, on the hearing of the appeal, Ruffin, J., thus declares the law, in sus- taining the judgment below: "It is one of the characteristic dis- tinctions between this action and trespass that the latter may be maintained on possession; the former only on property and the right of possession. Trover is to personals what ejectment is to the realty. In both, title is indispensable. It is true that as posses- sion is the strongest evidence of the ownership, property may be presumed from possession. And therefore the plaintiff may not in all eases be bound to show a good title by conveyances against all the world, but may recover in trover upon such presumption against a wrong-doer. Yet it is but a presumption and cannot stand when the contrary is shown. Here it is completely rebutted by the deed which shows the title to be in another and not in the plaintiff." The same point came up in Barwick v. Barwiek, 33 N. C. 80, and was similarly decided. Pearson, J., after presenting the same views as to the law, proceeds: "But if it appears on the trial that the plaintiff, although in possession, is not in fact the owner, the presumption of title inferred from the possession is rebutted, and it would be manifestly wrong to allow the plaintiff- to recover the value of the property. For the real owner may forthwith bring trover against the defendant and force him to pay the value a sec- ond time, and the fact that he had paid it in a former suit would be no defense." He adds, that trover can never be maintained un- less a satisfaction of the judgment will have the effect of vesting a good title in the defendant, except when the property is restored and the conversion was temporary. Accordingly it is well settled as the law of this state that to maintain trover the plaintiff must show title and a possession, or a present right of possession." . . Error. For a good explanation of trover, see 99 Pac. 1089, 23 L. R. A. (N. S.) 573. In Russell v. Hill, 125 N. C. at p. 472, 34 S. E. 640, in passing upon a question somewhat similar to that presented in the principal case, the court say: "The present action is in the nature of the old action of trover, and before the plaintiff could recover in an action of that nature he had to show both title and possession or the right of possession." It is on© of the characteristic distinctions between trover and trespass that tres- Sec. 2.] TANGIBLE PERSONAL PROPERTY. 611 pass may be maintained on possession ; trover only on property and the right of possession. Trover Is to personalty what ejectment is to realty. In both title is indispensable. Property may be presumed from posses- sion and a plaintiff may recover in trover on such presumption without proving his title against all the world; yet such presumption may be rebutted and, if rebutted, the plaintiff's action fails. If title be shown to be in a third person, the plaintiff fails in his action notwithstanding his possession. Ibid. The gist of the action of trover being the conver- sion, that remedy can be pursued by that person only who, at the time of the conversion, not only had a general or special property in the thing converted, but who had also at that time the possession or right of posses- sion. If the plaintiff had such title, possession or right of possession at the time of the conversion, his transfer of his title to the property con- verted — such transfer being made prior to the commencement of the action — will not defeat a recovery in trover. Hamilton v. Overton, 6 Blackford, 206. Any bona fide possession will sustain the action against a mere wrong-doer. Coffin v. Anderson, 4 Blackford, at p. 410. One co- tenant may maintain trover against another, where the defendant does acts amounting to a denial of the plaintiff's rights, or inconsistent there- with. Waller v. Bowling, 108 N. C. 289, 12 S. E. 990. Under the Code practice either claim and delivery or an action in the nature of trover may be prosecuted, at the plaintiff's election, in some instances. Als- brook V. Shields, 67 N. C. at p. 337. In connection with the principal case attention is called to the follow- ing language in Coffin v. Anderson, 4 Blackford, at p. 410: "Where the plaintiff in trover has a title founded simply on a bona fide possession, the defendant cannot defend himself by showing that a third person, be- tween whom and himself there is no connection, has a better title than the plaintiff. The question Involved in this instruction is not without difficulty. The defendant has referred us to two cases in which a dif- ferent opinion is expressed from that contained in this instruction. These cases are, Schermerhorn v. Van Volkenburgh, 11 Johns. 529, and Tanner v. Allison, 3 Dana, 422. But there are highly respectable au- thorities on the other side of the question. The instruction is expressly sustained by the opinion of Sergeant Williams in his learned note to the case of Wilbraham v. Snow, 2 Saund. 47, and the several authorities which he there relies on in support of that opinion. It is also directly supported by the opinion of Mr. Chitty in the first volume of his Treatise on Pleading, 6 Lond. ed. 173. This instruction Is also in accord- ance with the opinion of Chief Justice Parsons, delivered in the case of Waterman v. Robinson, 5 Mass. 303." Compare Barwick v. Barwick, 33 N. C. 80, inserted post in this section. "In an action of trover or detinue the plaintiff must allege and show title, and it is open to the defendant, upon a denial of the plaintiff's title, to show that the property belonged to a third person, without setting up in his answer the outstanding title." Admitting possession in the plaintiff at the time of the taking raises a presumption of title in the plaintiff which the defendant has the burden of rebutting. Vinson v. Knight, 137 N. C. 408, headnotes, 49 S. E. 891. See 10 L. R. A. (N. S.) 458, and note (trover for chattels sold under conditional sale and affixed to realty owned by a third person) ; 20 lb. 35, and note (for money collected by an agent or attorney). See "Tro- ver and Conversion," Century Dig. §§ 163-166; Decennial and Am. Dig. Key No. Series § 23. G12 TANGIBLE PERSONAL PROPERTY. [Ch. SIMMONS V. SIKBS, 24 N. C. 98. 1841. Proving the Conversion. When Trover and When Trespass on the Case Lies for Destruction, etc., of Bailed Chattels. [Trover for a canoe which defendant had borrowed. No demand by plaintiff and refusal by defendant was shown. Verdict and judgment against defendant, and be appealed. Affirmed. While the canoe was in the possession of the defendant it was de- stroyed by the act of God, or by some tort-feasor, or by the defendant. The defendant insisted that there having been no demand and refusal of the return of the canoe, he could not be held liable In trover unless it were shown that he destroyed the canoe. The court charged that, if defendant destroyed the canoe, he was liable; and that the fact proven, that the canoe was found beached and broken up, was some evidence that the defendant had destroyed it — ^the weight of such evidence being entirely with the jury.] Daniel, J. This action is trover. If there be a deprivation of property to the plaintiff, it will constitute a conversion, though there be no acquisition of property to the defendant. KeyvForth V. Hill, 3 B. & A. 687. If the property had been lost by the bailee, or stolen from him, or had been destroyed by accident or from negligence, this action could not have been sustained, but case would have been the proper remedy. 2 Saund. Rep. 47 ; Packard V. Getman, 4 Wend. 613 ; Ross v. Johnston, 5 Bur. 2285. To sus- tain this action of trover, the defendant must have been proven to have been an actor and to have made an injurious conversion, or done an actual wrong. Salk. 655; Peake's Rep. 49. The judge informed the jury, that, if they were satisfied from the evidence that the defendant had actually destroyed the canoe, they might find for the plaintiff. The defendant, however, insisted that there was no evidence that he was an agent in the destruction of the property, and that, without some evidence upon this point, the judge should charge the jury to find for the defendant. The judge said there was some evidence of a conversion, the weight of which was left entirely with the jury. It seems to us that there was some evidence from which the jury might infer that the defendant was an agent in the destruction of the property. The defendant had placed the canoe in the dock of the witness, which was a place of safety, and a short time afterwards it M'as missing, and in two months it was found broken up on the beach. It is not pretended that the canoe was removed from the dock by the winds — no pre- sumption arises that the bailor removed it — the bailee had a right to remove it ; and, in the absence of all other proof, the jury might presume that he, who had a right to remove, did remove the canoe, and, the canoe being afterwards found broken up, the jury might presume, in the absence of other evidence, that it was broken up by the agency of him, who had the control and management of the property. The judgment must be affirmed. See "Trover and Conversion," Century Dig. § 99; Decennial and Am. Dig. Key No. Series § 12. (S'ec. 2.] TANGIBLE PERSONAL PROPEETY, 613 GLOVER V. RIDDICK, 33 N. C. 582. 1850. What Amounts to a Conversion. [Trover lor the conversion of two slaves. Verdict and judgment against defendant. Both parties appealed. Reversed. In 1843, plaintiff purchased two runaway slaves, who were at large at the time of such purchase. These slaves appeared in defendant's neighborhood in 1846-7, and passed for freemen. They exhibited cer- tain papers which would indicate that they were free. Defendant being informed of these facts by reputable persons, gave these slaves certifi- cates to the effect that they were free. The judge charged that the giv- ing of these certificates amounted to a conversion of the slaves. This charge is held to be erroneous. The other points in the case are of minor importance.] Nash, J. None of the acts of the defendant, which are stated in the case, taken separately or together, amount in law to a conver- .sion. A conversion, to subject a defendant in an action of trover, consists either in an appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from, the plaintiff under a claim of title inconsistent with his own. Such is Mr. Greenleaf 's sum- mary of the acts of a defendant to constitute a conversion in the sense of the law of trover. 2 vol. Ev. § 642. Which one of these acts, it may be asked, has this defendant been guilty of? The de- fendant is a merchant ; and in 1846 and 1847 the negroes in ques- tion first appeared in his neighborhood, claiming and acting as freemen. They remained in that neighborhood until the 8th of November, 1849, and during that time worked for different per- sons openly. They purchased goods out of defendant's store in 1846 and 1847, and settled and paid the account of the first year, and exhibited to various persons free papers, as they are called. On the 8th of November, 1847, they requested the defendant to give them a certificate that they were free, alleging that they had left their free papers at a house some distance off. The defendant called on his clerk and a Mr. Everitt, who was in the store, and for whom they had worked, to state what they knew of their being free. They both stated that the negroes had passed as free ever since they had been in the neighborhood, and that they had seen their free papers with the county seal appended. The defendant then gave them the eertifieate set forth in the case, in which he certifies they are free. This is the only act upon which the plain- tiff relies to prove a conversion. Admit it was a wrongful act, yet it is not every tortious act affecting the property of another, that amounts to a conversion ; thus, cutting down his trees, without tak- ing them away, is no conversion. Myers v. Solebay, 2 Mod. 245. The giving of the certificate was certainly a very indiscreet act, to say the least of it, but it is no evidence of an act of ownership on the part of the defendant — it expressly disclaims it. His honor, however, ruled that the giving the paper writing by the defendant 614 TANGIBLE PERSONAL PROPERTY. [Ch. 7. was the exercise of such dominion over the slaves as amounted to a conversion. In this opinion we think there is error. . . . See 23 L. R. A. (N. S.) 573, and note. See "Trover and Conversion," Century Dig. § 99; Decennial and Am. Dig. Key No. Series § 12. BARWICK v. BARWICK, 33 N. C. 80. 1850. Btfect of Judgment in Trover on the Title to the Subject-matter. Meas- ure. of Damages. Gist of the Action. Title That Will Sustain Trover. [Trover for slaves. Verdict and judgment against defendant, and he appealed. Reversed. Certain slaves were owned by Sarah Sutton for life with remainder to her four daughters, one of whom was the wife of the defendant. The defendant and his wife sold their interest in the slaves to the plaintiff who took four of them into his possession. Afterwards the defendant sold two of these which the plaintiff had in his possession to his co- defendant, who took them away from the plaintiff and carried them out of the state. The plaintiff brought this action of trover for the two slaves thus taken away. The defendants insisted that the plaintiff did not have, and could not have, a title and right of possession, although he did have the actual possession of the slaves, because the life tenant was still living. The judge charged that if plaintiff was in possession of the slaves when the defendants took them away, he could recover their value from the defendants, because they were wrong-doers who had no title.} Pearson, J. . The defendants excepted to the charge of his Honor, and we think the exception well founded. The bare possession is sufficient to maintain an action of tres- pass against a wrong-doer, for the gist of that action is an injury to the possession, and the measure of damages is not the value of the property, but the injury done to the plaintiff by having his possession disturbed. In trover, the injury done hy the wrongful taking is waived, and the plaintiff supposes he l^as lost his prop- erty; and he alleges that the defendant found it and wrongfully converted it to his own use. So the gist of the action is, not that the defendant having found the property took it into his posses- sion but that, after doing so, he wrongfully converted it to his own use, and the measure of damage is the value of the property. It is true, that when nothing appears but the fact that the de- fendant took the property out of the possession of the plaintiff and converted it to his own use, trover will lie. For the possession of personal property is prima facie evidence of title, and, in the absence of any proof to rebut this presumption, the person in pos- session is taken to be the owner and can recover the full value. But, if it appears on the trial, that the plaintijffi, although in pos- session, is not in fact the owner, and that the property belongs to a third person, the presumption of title, inferred from the posses- sion, is rebutted; and it would be manifestly wrong to allow the plaintiff to recover the value of the property ; for the real owner may forthwith bring trover against the defendant, and force him to pay the value a second time, and the fact that he had paid it in SeC: 2.] TANGIBLE PERSONAL PROPERTY. 615 a former suit would be no defense. When trover is brought and the defendant satisfies the judgment, he pays the value of the property, and the title is vested in him by a judicial transfer, he- cause he has paid the price. Consequently, trover can never be maintained, unless a satisfaction of the judgment will have the eifect of vesting a good title in the defendant, except when the property is restored, and the conversion was temporary. Accord- ingly, it is well settled as the law of this state, that to maintain trover, the plaintiff must show title and a possession, or a present right of possession. Hostler's Admrs. v. Scull, 3 N. C. 139; 4 N. C, 585; Laspeyre v. McFarland, 4 N. C. 620; Andrews v. Shaw, 14 N. C. 70. There are cases in the English books, and in tlie reports of some of our sister states, to the contrary; but we must be allowed to say, that the doctrine of our courts is fully sustained by the reason of the thing, and is most consonant with the peculiar principles of this action. The eases differing from our decision are all based upon a misapprehension of the principle laid down in the leading case, Delimerc v. Armory. In that case the jewel was lost, and was found by the plaintiff, a chimney sweeper. He had a right to take it into possession, and became the owner by the title of occu- pancy, except in the event of the true owner becoming known. The former owner of the jewel was not known, and it was properly decided that the finder might maintain trover against the defend- ant to whom he handed it for inspection, and who refused to re- store it. But the result of that case would have been very different, if the owner had been known. The defendant could then have said, to the plaintiff, you have no right to make me pay you the value, when I must forthwith deliver up the property to the owner, or else pay him the value a second time. The distinction between that case, when the possessor was the only known owner, and the ordiriary case of one who himself has the possession wrongfully and sues another wrong-doer for inter- fering with his possession — the true owner being known and stand- ing by ready to sue for the property — is as clear as daylight. In this case, for instance, as the facts appeared on the trial, the plain- tiff was in the wrongful possession, which was disturbed by the defendant, and for that injury he had a right to recover in tres- pass. But Sarah Sutton was known as the true owner, and had a right to demand her property of the defendants, or else to recover its value, and they could not protect themselves by showing that they had paid the full value to the plaintiff, under the coercion of a judgment and execution. This result would seem, by the reduc- tio ad absurdum, to show that the inference from the case of Deli- mere V. Armory, that trover can be maintained against a wrong- doer by one having a naked possession, when the true owner is known, is contrary to good sense. That which is not good sense, is not good law. The judgment must be reversed, and there must be a venire de novo. What is said in the principal case with regard to the effect of the 616 TANGIBLE PERSONAL PEOPEETT. [Ch. 7. judgment in trover, and the necessity of plaintiff's showing title and possession or right of possession, is quoted with approval in Russell v. Hill, 125 N. C. at p. 473, 34 S. E. 640, and in Boyce v. Williams, 84 N. C. at p. 277, inserted ante in this section. As is said in Barb v. Fish, 8 Blackf. 481, at p. 482, "there seems to be much uncertainty and contra- diction in Ihe cases reported as to how far or under what circumstances, a judgment in trespass or trover vests the right to the property in the goods in the defendant." In that case, decided in 1847, and in the note thereto, will be found an elaborate discussion of this perplexing and unsettled question. For further light on the subject, see 1 Gray's Cases L. P. 11; 28 Am. & Eng. Enc. L. 738; Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, 25 L. R. A. 42. In Cooley on Torts, p. 537, it is said that the modern rule in England is, that the judgment alone does not vest title in the defendant; but the satisfaction of such judgment does have that effect; and such, he says, is the rule in America according to the weight of authority. To the same effect see Bish. Non-Cont. L. § 399. See "Trover and Conversion," Century Dig. §§ 119-147, 314; Decennial and Am. Dig. Key No. Series §§ 15-17, 70; "Remainders," Cent. Dig. § 15. GREENFIELD BANK v. LBAVITT, 17 Pickering, 1. 1835. Measure of Damages in Trover. Return of the Property. [Trover for packages of bank bills which were converted by the de- fendant and afterwards returned to the plaintiff. Verdict against the defendant, subject to the opinion of the court. Judgment according to the verdict. Upon the question as to what judgment should be rendered on the verdict, the opinion is written. It would seem from the reported case, that the packages of money in question had been placed in the charge of the defendant as a bailee of some kind. It does appear that the packages were lost and afterwards returned to the plaintiff by some person, upon its offering and paying a reward therefor. Some of the money was missing from the packages. The judge charged that the plaintiff's damages would be the value of the bank bills when converted — to be diminished by the value of the bills restored — and the amount paid out in rewards, if the jury should find that such amounts were reasonable, with interest. The verdict was in accordance with the instructions, subject to the opinion of the court as to the correctness of the charge.] Putnam, J. The general rule in trover, that the measure of damages is the value of the articles at the time of the conversion, with interest until the time of the verdict, is established in this commonwealth. Kennedy v. Whitwell, 4 Pick. 466. We are aware that it has been ruled differently by Abbott, C. J., in Greening v. Wilkinson, 1 Car. & P. 625 ; where he held, that the jury might find the value at any subsequent time. But we adhere to the value at the time, as a rale which works well : and its certainty is quite an equivalent for its occasional want of perfect exactness. It is also well settled, that if the property for which the action is brought should be returned to and received by the plaintiff, it shall go in mitigation of damages. But if it became subjected to a charge after the conversion and before it was returned; if, for example, the conversion were of a watch, which the defendant threw into a well, and the plaintiff hired a man to descend into the Sec. 3.] TANGIBLE PERSONAL PROPERTY. 617 well and get it, the expense of reclaiming it should be deducted from the value, when returned. It is the charge that regulates the damages, as Thomson, J., said in Murray v. Burling, 10 Johns. 176; as where one takes another's horse and leaves him at an inn, and the owner reclaims him, subject to the charge for his keeping. The damages are for the injury suffered, notwithstanding the owner has regained his property. . . Judgment entered for the plaintiff according to the verdict. For measure of damages see 18 L. R. A. (N. S.) 250, and briefs and note; see also IS lb. 244, and note. See "Trover and Conversion," Cen- tury Dig. §§ 263, 277; Decennial and Am. Dig. Key No. Series §§ 46, 58. WOMBLE V. LEACH, 83 N. C. 84, 86. 1880. Waiving the Tort in Trover. Jwrisdiction in Trover. [Action in the superior court for damages resulting from tlie alleged conversion of plaintiff's cotton to defendant's use. Verdict and judg- ment against defendant, and he appealed. Affirmed. Only a small part of the opinion is here inserted. In North Carolina a justice of the peace has exclusive jurisdiction of civil actions arising out of contract where the sum demanded does not exceed two hundred dollars, and jurisdiction concurrent with the superior court in actions for damages not exceeding fifty dollars.] Smith, C. J. . . . The action is for a tortious taking and withholding of the plaintiff's property, and the damages claimed therefor are for more than fifty dollars, of which the superior court has exclusive jurisdiction. Acts 1876-77, eh. 251. The de- fendant's counsel argued that, as the value of the property was sought, the obligation of the defendant to account therefor arose out of an implied contract, and under the authority of Winslow v. Weith, 66 N. C. 432, was cognizable only before a justice of the peace. This is a misconception of the principle of law recognized and acted on in that case. The rule is this : When one wrongfully takes the personal property of another and sells it, the owner may waive the tort, affirm the contract of sale, and sue for the proceeds as money received to his use, and this would be an action upon an implied contract. . . . Where property is tortiously converted by a sale made by the wrong- doer, the owner may waive the tcrtious conversion and sue, upon an Implied contract, for money had and received by the defendant. Brit- tain V. Payne, 118 N. C. 989, 24 S. E. 711, inserted at ch. 4, sec. 1. "It has been said that where there has been a conversion by a sale of the property, the plaintiff may maintain trover, or he may dispense with the wrong and suppose the sale made 'by his consent, and bring an ac- tion for the money for which the property was sold, as money received to his use. Cooley on Torts, pp. 92, 93; Murray v. Burling, 10 Johns. 172. Both of these remedies could not be sought in the same action. Polner v. Jarmain, 2 M. & W. 282." Bixel v. Blxel, 107 Ind. at p. 536, 8 N. E. 614. If, under the Code practice, the complaint allege merely a conversion 618 TANGIBLE PERSONAL PROPERTY. [Ch. 7. Of property by an agent, and fails to allege any misappropriation or con- version of the proceeds, there can be no recovery except for the conver- sion of the property, and evidence of a misappropriation or conversion of the proceeds will not be admitted. Bixel v. Bixel, 107 Ind. 534, 8 N. E. 614. After reading this case, the question arises as to whether we may not modify some of the boastings of those who claim that the subtleties and refinements of the ancient race of special pleaders has been abolished by the Code practice. See "Action," Century Dig. §§ 198- 203; Decennial and Am. Dig. Key No. Series § 28. Sec. 3. Trespass Vi et Armis and Trespass on the Case for Injuries to Personal Property. DODSON v. MOCK, 20 N. C. 282. 1838. Trespass and Case Distinguished. [Trespass vi et armis for killing the plaintiff's dog. Verdict and judgment against the defendant, and he appealed. Reversed. There was circumstantial evidence to the effect that the defendant had poisoned the dog either by directly administering the poison; or by plac- ing it where the dog would be likely to eat it; or by placing it where the dog happened to get it. The judge charged that if the defendant had killed the dog hy throwing poison to him, or by putting it down where he knew the dog would pass along and get it, trespass vi et armis would lie, and the action was properly brought; T>ut if the defendant had put the poison in the cracu of a fence and the dog had casually passed by and got it. the defendant was entitled to a verdict, as, in that event, the action should have been Trespass on the Case and not Tres- pass vi et armis.] Gaston, J. . . In that part of the charge which relates to the form of the action, we do not entirely concur with his Honor. We hold with him that if the poison had been directly adminis- tered (and the throwing it down to the dog mixed up with food is a direct administration of the poison), either by the defendant or by any other person under his direction, the action of trespass was the proper remedy. But we do not assent to the position that " if it were put by the defendant in a place where he knew the dog would pass and get at it, and the dog afterwards passed and swal- lowed the poison, the action of trespass might also be maintained." The distinction between injuries which are the proper subject of an action of trespass and those which are to be redressed by an action on the case — between injuries immediate, and injuries con- sequential — is sometimes very subtle and attenuated. But the law makes the distinction, and the ministers of the law must follow it out. Acts which are of themselves invasions upon the person or property (in possession) of another, are of the first class, or imme- diate injuries. Acts which, by reason only of subsequent occur- rences, occasion an injury to the person or property of another, which injury was either foreseen or ought to have been guarded against, are the subject of an action by the party grieved, because of this consequent injury, and come under the second class. One Sec. 3.] TANGIBLE PERSONAL PROPERTA'. 61!) of the most apt as well as ordinary illi-.strations of the legal dis- tinction is thus stated : If A throw a log in the highway and it hits B, B may maintain trespass; but if B come along afterwards and fall over it, and thereby receives an injury, the remedy is case. Nor in the instance last put will it make any difference whether at the time the log was thrown, it was or A\a.s not known that B was shortly thereafter to pass along and in all probability would stum- ble over it. There are indeed some instances where, although the injury be immediate, it may be alleged as a consequence of negli- gence or inattention, and the action on the case be maintained. But we know of none where the injury is entirely an indirect con- sequence of a previous act, in which it may be complained of as a trespass with force and arms. For this error we feel ourselves obliged to reverse the judgment rendered below and order a venire de novo. Judgment reversed. See "Action," Century Dig. §§ 236-255; Decennial and Am. Dig. Key No. Series § 30. WHITE V. GRIFFIN, 49 N. C. 139. 1856. Trespass and Case Further Distinguished. [Action of trespass on the case for seizing and detaining a vessel. In deference to an adverse intimation from the judge, the plaintiff submit- ted to a nonsuit and appealed. Reversed. The vessel belonged to Burgess, but the plaintiff had it in his posses- sion, at the time of the defendant's acts, under a charter to make a voy- age to the West Indies. The defendant kept the vessel a week and then returned it to the plaintiff who proceeded on his voyage. The vessel was lost and plaintiff sues for its value, on the ground that there was evidence to the elfect that the weather was good during the week the vessel was detained from him, and but for defendant's acts he would not have encountered the storm which destroyed the vessel.]- Nash, C. J. We think there is error in the judge's opinion. lie doubtless came to his conclusion, from the belief that the plaintiff could not recover the vaUie of his vessel from the defendant, which he certainly could not (though the detention by him might have been the remote cause of the loss of the vessel), and by not advert- ing to the principle, that, for every tortious act committed as to the property of another the perpetrator is answerable to the owner in damages, either in case or in trespass. If the trespass is com- mitted on property while in possession of the owner, "trespass" is the proper remedy ; if while in the possession of another as bailee, the owner having but a reversion of the property, the action is ' ' case. ' ' This is an action of the latter character — the vessel being in the actual possession of Burgess at the time the act was com- mitted. The vessel was the property of the plaintiff, and by him chartered to Burgess for a trip to the West Indies. She was loaded with staves, the property of a Mr. Williams, and while lying at the wharf at Elizabeth City and ready to start on her voyage, one Banks, a constable, came on board and levied several executions on ■620 TANGIBLE PERSONAL PROPERTY. [CJl. 7. the staves. In one of these executions the present defendant was the plaintiff, and Banks acted by his direction in making the levy. The executions were all against Burgess; the staves belonged to Williams. The levy was illegal; in consequence of it, the vessel was detained in port six days ; and though the plaintiff is not en- titled to ask for damages for the loss of the vessel, yet he is entitled, at least, to nominal damages from the defendant, for his illegal detention, by having his execution improperly and illegally levied. Venire de novo. See "Bailment," Century Dig. § 96; Decennial and Am. Dig. Key No. Series § 21. SCHUER V. VBBDBR, 7 Blackford, 342. 1845. Trespass and Case Further Distinguished. Dewey, J. Case for so negligently managing the defendant's boat, that it violently struck and sunk the plaintiff's boat. Gen- eral demurrer to the declaration sustained ; and final judgment for the defendant. The question here raised is, whether a direct and forcible injury to property, not intentional, but the result of care- lessness, may be the subject of an action on the case, or whether trespass is the only remedy. There is no doubt that, at common law, trespass will lie for a direct and violent injury, whether in- flicted through negligence or intentionally. Leame v. Bray, 3 Bast, 593. And, since the decision of the case of Williams v. Hol- land, case has also been a legal remedy for such an injury if occa- sioned by carelessness, but not if wilfully done. 10 Bing. 112. See also Ogle V. Barnes, 8 T. R. 188 ; Blin v. Campbell, 14 Johns. 432. The demurrer should have been overruled. Judgment reversed. See "Action," Century Dig. §§ 236-255; Decennial and Am. Dig. Key No. Series § 30; "Action on the Case," Century Dig. § 32; Decennial and Am. Dig. Key No. Series § 1; "Trespass," Century Dig. § 3; Decennial and Am. Dig. Key No. Series § 2. NEAL V. WILCOX, 49 N. C. 146. 1856. €ase on the Custom, and Special Action on the Case Against an Inn- keeper. [Action on the case against an inn-keeper for the loss of plaintiff's mule, while plaintiff was stopping at the inn. Verdict and judgment against plaintiff. Affirmed. The plaintiff declared on "the custom" against the defendant as an inn-keeper. The plaintiff was a guest, and his business was that of an itinerant dealer in horses and mules. He put a drove of mules in a lot adjoining the inn premises, and furnished the food for, and attended to, his stock himself though he was assisted in this work by the inn-keeper's servants. While one of these servants was taking one of the plaintiff's mules to water, the mule got away and was lost. The judge charged that if plaintiff was a boarder and not a guest and was himself taking Sec. 3.] TANGIBLE PERSONAL PROPERTY. 621 care of his mules, he could not recover; aliter, if plaintiff was a guest and the mule was in the care of the defendant.] Pearson, J. This is an action on the ease, on the "custom of the land," against the defendant, as an inn-keeper, for the loss of a mule. In this action, on the ground of public policy, common carriers and inn-keepers are treated as insurers, and are liable, ex- cept ' ' for the acts of God, and the enemies of the state, ' ' without proof of negligence. In which respect it differs from an ordinary action on the case against a bailee. In our case, there being no proof of negligence, the plaintiff properly declared "on the cus- tom. ' ' If he could have made this proof, it would have been most proper to declare on the special case ; for a recovery in that action may be made against an inn-keeper who is guilty of negligence, in many instances, where he would not be liable in "case" on the custom: for instance — one takes boarding at an inn, on a special contract and his goods are lost, the inn-keeper is not liable ' ' on the custom ; ' ' but he is liable in a special action on the case, if negli- gence be proved. So, if one leave a trunk or carriage to be kept by an inn-keeper, or if one deliver a flock of sheep, or a droX^e of mules, or horses, to an inn-keeper to be pastured, he is only liable as bailee, on proof of negligence. The ground of public policy, on which an action on the case ' ' on the custom" is given against inn-keepers, is that persons who are travelling through the country are under a necessity of putting up at inns for entertainment — transeuntes causa hospitandi (from which last word they are called "guests,") without knowing any- thing about the character of the house ; for which reason the law gives an assurance of the safety of their property — that is, the goods and animals (bona et catalla) which they have with them for the purposes of their journey. The reason restricts this action to gucsis as distinguished from hoarders, who so,iourn at an inn on a special contract. 3 Bac. Abr. 666, "Inns. " It is sometimes dif- ficult to draw the line between guests and boarders. They fre- quently run into each other, like light and shade. So, the line be- tween a common carrier and a bailee to carry, is sometimes scarcely perceptible; but the law makes the distinction, and it is the prov- ince of the judge to draw the line. A transient customer at an inn, although he be not a traveler or a stranger, is considered as a guest; a lodger, who sojourns at an inn, and takes a room for a specified time,, and pays for his lodging, on a special agreement — as, by the month or week, is a boarder. Bennett v. "Wilson, 5 T. R. 273. So, the reason restricts the action to one who comes for enter- tainment — causa hospitandi. If one peddling merchandise puts up at an inn, and, besides his sleeping apartment, takes a separate room in which to show and sell articles — clocks and watches, for instance — these articles are not within the protection of the rule. Burgess v. Clements, 4 M. & S. 306. So, if one having a drove of horses or hogs to sell, puts up at an inn, and, besides entertain- ment for himself, procures from the landlord a lot in which to •keep his animals, for the purpose of showing and selling them. '622 TANGIBLE PERSONAL PKOPEBTY. [67?,. 7. they are not specially protected; and it makes no difference whether, by the agreement, the landlord has them fed, or whether the drover buys provender of the landlord or a third person, and feeds them himself; for, as Lord Ellenborough says, in the above case, ' ' an inn-keeper is not bound by law to find show-rooms for his guests, but onty convenient lodging-rooms and lodging." The rule is restricted to such goods and animals as the guest carries with him for the purposes of his journey ; " a flock of sheep is not com- prehended among the bona et catalla transeuntis, which an inn- keeper is bound to receive and protect." Hanby v. Smith, 25 Wend. 642. If such articles are received, the inn-keeper is only liable for neglect as a bailee. The policy fixing this special liabil- ity of inn-keepers is to encourage traveling and intercourse among the citizens, and does not reach so far as to take in considerations of trade and commerce. So, the reason restricts the action to the things that are in the house and stables — infra hospitium, and does not extend to a horse that is put to grass according to an un- derstanding between the inn-keeper and the guest. Calye's case, 8 Rep. 32. This applies to horses and mules put into a lot by agree- ment of the parties. From these principles, it is clear that the plaintiffs have no right to complain of his honor's charge. The defendant had a right to expect him to be more specific in respect to the distinction be- tween a guest and a boarder — what things are within the protec- tion of the rule, and what are left to the liability of an ordinary hailee, and what place is within the inn — infra hospitium. Upon all these points, according to the facts found by the .jury, the de- fendant was entitled to a verdict. Any one of them was sufficient for his purpose. There is no error. Judgment affirmed. The principal case is approved in Holstein v. Phillips, 146 N. C. 366, 59 S. E. 1037, and the liability of inn-keepers to their guests, lodgers and boarders — both at common law and under modern statutes, by which, in many states, such liability has been greatlj^ modified — is clearly ex- plained by Hoke, J., who reviews authorities from several states. See 20 L. R. A. (N. S.) 1027, and note. See "Innkeepers," Century Dig. ^ 19; Decennial and Am. Dig. Key No. Series § 11. GIBBS V. CHASE, 10 Mass. 12.5. 1813. Trespass de Bonis Asportatis. Title that Will Sustain the Action. Force. [Trespass de bonis asportatis for taking and carrying away lumber. Verdict and judgment against the plaintiff, who filed exceptions. Upon these exceptions the opinion is written. Reversed. The plaintiff was a deputy sheriff in possession of certain lumber by virtue of the levy of an execution. The defendant was a coroner and, as such, took the lumber from plaintiff's possession by virtue of a writ of attachment against the former owner. The lumber was frozen in a dock at the time plaintiff levied on it, so that he could not remove it. He left it there in the custody of one Drinkwater, and it was there -when the defendant seized it. The judge charged that under this state of facts the charge that defendant "forcibly took the lumber from plain- tiff's hands," was not supported.] Sec. 3.] TANGIBLE PERSONAL PROPERTY. 623 Sewall, J. The exceptions bring before us these questions: 1. Whether there is any evidence of a trespass in this case — the jury having been instructed that the plaintiff must fail in his ac- tion, for want of evidence to prove a forcible taking by Chase, the defendant, of the timber in question. We think this direction to the jury incorrect. The brief state- ment admits the taking, and no actual force is necessary to be proved. An owner may admit himself dispossessed and deprived of a personal chattel, for the sake of his remedy. He who inter- feres with my goods, and, without any delivery by me, and with- out my consent, undertakes to dispose of them, as having the property, general or special, does it at his peril to answer me the value in trespass or trover; and even a subsequent tender of the goods will not excuse him, if I choose to demancl the value ; and the return, if accepted, is only evidence in mitigation of damages. Thus, the working of an estray, or a beast distrained, is a trespass ab initio ; and the owner may declare for an unlawful taking, after he has regained his propertj'. 2. Another question then arises, — whether the evidence estab- lishes a property in the plaintiff suiSeient to maintain this action. His title as deputy sheriff, by force of the seizure in execution, is special, depending on his authority by the execution ; that is, it is not otherwise insisted on, or maintained, against the owner, or an- other creditor ; but his possession is sufficient authority against a stranger. The plaintiff seized the timber as the property of Rob- bins, and he had the exclusive possession of it; as much so as the nature of the article and its actual situation at the time permitted, it being bulky, and frozen in the ice. He placed it in the custody of Drinkwater. Notice was given of this to Chase, when he re- claimed it, and proceeded to sell it. This was a possession which the owner, or any person having a general property, or even one who had acquired a special property by a seizure or possession more rightful than that of the plaintiff, had power to remove, without a breach of the peace. Such a possessor might surely dis- regard this possession of Gibbs; but a mere stranger could not. . . New trial. See note to the principal case in 10 Mass., for valuable information upon the subject of trespass de bonis asportatis. See "Trespass," Cen- tury Dig. §§ 4, 30, 31; Decennial and Am. Dig. Key No. Series §§ 3, 19; "Attachment," Century Dig. § 605; Decennial and Am. Dig. Key No. Series § 186. HUME V. TUPTS, 6 Blackf. 136. 1842. Trespass de Bonis Asportatis. Title and Passession that Will Sustain the Action. Action iy Reversioner. [Trespass de bonis asportatis by Tufts against Hume for goods taken by Hume from Jackson, the lessee of Tufts, under an execution against Jackson. Verdict and judgment against Hume, who carried the case to the supreme court by writ of error. Reversed. The goods in controversy belonged to Tufts, but he had leased them 624 TANGIBLE PERSONAL PROPERTY. [Ch. 7. to Jackson for one year or until Tufts should demaud them. They were in Jackson's possession under this lease when seized by Hume. Tufts had not demanded the goods of Jackson prior to such seizure, nor had the time of the lease then expired. The judge charged that under these circumstances this action would lie.] Dewey, J. . . . The propriety of this instruction is the question for our consideration. To maintain trespass, it is essen- tial that the plaintiff should have been in the actual or constructive possession of the property at the time the injviry was committed. Smith V. Milles, 1 T. R. 480 ; Ward v. Macauley, 4 T. R. 489 ; or, at least, he must have had a general or special property in the goods in controversy, and a right to the immediate possession of them. Chinn v. Russell, 2 Blackford, 172, and note 3. We do not think that the facts of this case bring the plaintiff within this rule. When the defendant levied the execution against Jackson upon the goods, the latter had, under the lease, a special property in, and the aetiial and rightful possession of them. The lease had not expired by the lapse of time, nor had it been termi- nated by a demand of the leased property. It is true that Tufts, the general owner, could, by a demand of the goods, have extin- guished the special property of Jackson, and have entitled himself to the immediate possession ; but not having taken that step, he could have maintained neither trover nor replevin against Jack- son. His right was merely reversionary; for an injury to such right, trespass was not the appropriate remedy. We think, there- fore, that the instruction of the circuit court, that the plaintiff could maintain the action, was wrong. . . . Judgment re- versed. See "Trespass," Century Dig. §§ 44-47; Decennial and Am. Dig. Key No. Series § 20. SBTZAR V. BUTLER, 27 N. C. 212. 1844. When Trespass de Bonis Asportatis Lies Against u Bailee; and When Trespass on the Case and Trover Lie Against a Bailee. [Trespass vi et armis de bonis asportatis, for taking and carrying away a bed and its furniture, the property of the plaintiff. In deference to an adverse intimation from the judge, the plaintiff submitted to a nonsuit and appealed. Affirmed. The bed and its furniture were the property of Mrs. Bowell, who gave them to the plaintiff, but retained the possession of them until her death. Mrs. Bowell resided with Samuel Patterson and kept the bed, etc., at his house. After her death, the defendant, as her executor, took the bed, etc., from Mr. Patterson's house and sold them, against the protest of the plaintiff. The plaintiff was a married woman, and her husband was joined with her in the action.] Daniel, J. This is an action of trespass vi et armis de bonis asportatis, in taking and carrying away a bed and its furniture, the property of the plaintiffs. Plea — not guilty. The judge in his charge to the jury assumes that trover would lie for the plaintiffs. Sec. 3.] TANGIBLE PBRSONAIj PROPERTY. 625 and therefore that the plaintiffs must have had not only the title to the bed, but also the right to the immediate and exclusive use and possession of it. It seems that the mother of Mrs. Setzar was the bailee of the bed, and the defendant, when he took possession of it as her executor, stood in the same relation. The bailor de- manded of him the bed, and he refused to give it up. This re- fusal turned him into a wrong-doer, and was in itself evidence of a conversion. The defendant, however, went on and sold the bed to some third person. Can an action of trespass de bonis asporta- tis be sustained by the bailor for these acts done by the bailee? If a bailee misuses the thing bailed, an action on the case lies. And if the bailee, on demand, refuses to deliver up the thing bailed, or sells it, but does not destroy it, then trover may be brought. Bat if the bailee destroys the thing bailed, as if sheep or cattle be bailed, and the bailee kills them, then trover or trespass may be maintained by the bailor against the bailee, as the bail- ment is determined by the act; Co. Lit. 57, (a), 58, 200, (a) ; 3 Stephens, N. P 2637. It does not appear from the case, that the bed is destroyed, or out of the reach of the plaintiffs, and trover may often be brought when trespass cannot, 2 Saund. R. 47, p — as if goods are lent or delivered to another to keep and he refuses to return them on demand, trespass does not lie, but the proper rem- edy is trover. The judgment must be affirmed. See "Bailment," Century Dig. § 117; Decennial and Am. Dig. Key No. Series § 25. DILTS V. KINNEY, 15 N. J. L. 130. 1835. Trespass Vi et Armis and Trespass on the Case for Injuries Done ty Animals. [Margaret Kinney sued Dilts and others in Trespass vi et armIs for "lugging her cattle with a dog — killing one and wounding another." Judgment against Dilts and others, who carried the case to the supreme court by writ of certiorari. Affirmed. The second exception was, that Trespass vi et armis would not lie for the injury complained of. The declaration was that Dilts and others, "with their dog," did the injury.] HoRNBLOVSTER, C. J. . . . The second ob.iection is founded on a supposed misconception of the action, which it is insisted should have been in case, and not in trespass. In Woodruff v. Clark, 2 Penn. R. 1045, the court remarked, that the distinction between case and trespass was in many instances so nice that it only served to perplex suitors, and the court considered itself .iustified in refusing to reverse on the ground of a mistake in that matter. But it is not necessary to rely upon that case, even if we were disposed to adopt it. because in the case before us, the rule is too plain to admit of a doubt. This action was brought against the defendants for a tort committed hj/ them; the declaration al- leges, "that the defendants with their dog" did the injury com- plained of. Trespass, therefore, was the proper action. If the in- Remedies — 40. 626 TANGIBLE PERSONAL PROPERTY. [Ch. 7. jury had been done by the dog or other animal of the defendants, in their absence, and without their agency, the remedy would have been by an action on the case. . . . Judgment affirmed. For the law as to the liability of the owner for injuries caused by vicious and dangerous animals kept by him; when the scienter must be shown; what is suflBcient proof of the scienter; measure of damages, etc., see Cockeram v. Nixon, 33 N. C. 269; Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6. In Smith v. Pelah, 2 Strange, 1264, it was ruled that if a dog has once bitten a man, and the owner having notice thereof, still keeps the dog and lets him go about or lie at his door, an action will lie against such owner by one bitten by the dog, though it happened by the plaintiff's treading on the dog's toes; "/or it was oxoing to his [the own- er's] not hanging the dog on the first notice. The safety of the king's subjects ought not afterwards to be endangered. The scienter is the gist of the action." This case is expressly approved in the Wisconsin case; and the North Carolina case, while not referring to it, is to the same general effect. In that case the remedy was "case," because the injury was done by an animal in the absence of the owner. See 11 L. R. A. (N. S.) 748, and note. See "Action," Century Dig. § 252; Decennial and Am. Dig. Key No. Series § 30; "Action on the Case," Century Dig. § 33; Decennial and Am. Dig. Key No. Series § 1. DOOLING V. BUDGET PUB. CO., 144 Mass. 258, 10 N. E. 809. 1887. Slander and Libel of the Chattels of Another. [Tort for an alleged libel. The publication was admitted. No proof was offered of any special damage suffered by the plaintiff. For lack of such proof the judge directed a verdict against the plaintiff, and reported the case to the supreme court for determination. If that court approved the judge's ruling, judgment was to be entered against the plaintiff, otherwise the case to stand for a new trial. The ruling below was ap- proved, and judgment rendered against plaintiff. The plaintiff was a caterer and acted as such in furnishing a dinner for the Ancient and Honorable Artillery Company, which dinner was thus referred to in a newspaper published by the defendant: "Probably never in the history of the Ancient and Honorable Artillery Company was a more unsatisfactory dinner served than that of Monday last. One would suppose, from the elaborate bill of fare, that a sumptuous dinner would be furnished by the caterer, Dooling, but instead a wretched din- ner was served, and in such a way that even hungry barbarians might justly object. The cigars were simply vile, and the wines not much bet- ter." (This may recall Sidney Smith's bon mot in giving an account of a dinner which he attended: "Everything was cold except the ice cream, and everything was sour except the vinegar.")] C. Allen, J. The question is whether the language used im- ports any personal reflection upon the plaintiff in the conduct of his business, or whether it is merely in disparagement of the din- ner which he provided. Words relating merely to the quality of articles made, produced, furnished, or sold by a person, though false and malicious, are not actionable without special damage. For example, the condemnation of books, paintings, and other works of art, music, architecture, and, generally, of the product of one's labor, skill, or genius, may be unsparing, but it is not action- able without the averment and proof of special damage unless it Sec. 3.] TANGIBLE PERSONAL PKOfEETY. 627 goes further, and attacks the individual. Gott v. Pulsifer, 122 Mass. 238; Swan v. Tappan, 5 Cush. 104; Tobias v. Harland, 4 Wend. 537 ; Western Counties Manure Co. v. Lawes Chem. Ma- nure Co., L. R. 9 Exeh. 218 ; Young v. Macrae, 3 Best & S. 264; In- gram V. Lawson, 6 Bing. (X. C.) 212. Disparagement of property may involve an imputation on personal character or conduct, and the question may be nice, in a particular case, v^^hether or not the words extend so far as to be libelous ; as in Bignell v. Buzzard, 3 Hurl. & N. 217. The old case of Fen v. Dixe, W. Jones, 444, is much in point. The plaintiff there was a brewer, and the de- fendant spoke of his beer in terms of quite as strong disparage- ment as those used by the present defendants in respect to the plaintiff's dinner, wine, and cigars, but the action failed for want of proof of special damage. In Evans v. Harlow, 5 Q. B. 631, Lord Denman, C. J., said: "A tradesman offering goods for sale :-xposes himself to observations of this kind ; and it is not by aver- ring them to be false, scandalous, malicious, and defamatory that the plaintiff can found a charge of libel upon them. ' ' In the present case, there was no libel on the plaintiff in the way of his business. Though the language used was somewhat strong, it amounts only to a condemnation of the dinner, and its accompa- niments. No lack of good faith, no violation of agreement, no promise that the dinner should be of a particular quality, no habit of providing dinners which the plaintiff knew to be bad, is charged, nor even an excess of price beyond what the dinner was worth; but the charge was, in effect, simply that the plaintiff, be- ing a caterer, on a single occasion provided a very poor dinner, vile cigars, and bad wine. Such a charge is not actionable without proof of a special damage. Judgment on the verdict. The remedy at common law for such an injury to property, was by special action on the case, see Swan v. Tappan, 5 Cush. 104, at p. 109, cited in the principle case. See "Libel and Slander," Century Dig. § 1; Decennial and Am. Dig. Key No. Series § 1. There being but one form of action under the Code practice, whether the wrong complained of be one to be redressed, under the common law practice, by Trespass, Trover, or Detinue, will depend upon the record and pleadings in the cause. Even now the plain- tiff's recovery will be governed, to an important extent, by the principles governing these common law remedies and actions. Vinson V. Knight, 137 N. C. 408, 49 S. E. 891. 628 REGHTS GROWING OUT OF CONTRACT. [Ch. 8. CHAPTER VIII. INJURIES TO RIGHTS GROWING OUT OF CONTRACT. Sec. 1. Action op Covenant. DAVIS V. JUDD, 6 Wis. 85. 1858. When Covenant Lies. [Action of Covenant on an alleged covenant of warranty. Plea of non est factum. Jury trial waived, and trial by the judge. Judgment against the defendant, and he appealed. Reversed. The alleged covenant was in the usual form of a covenant of warranty, hut there was no seal to the instrument in which the covenant was con- tained. The instrument was in the usual form of a deed of conveyance, and contained the recital that the grantors had thereto "set their hands and seals." The defendant insisted that the action of covenant would not lie upon an instrument not under seal. The judge ruled that the action would lie under the circzimstances of this case.] Cole, J. The pleadings in this case were all made up and set- tled before the code took effect, and while the distinction in com- mon law actions was kept up and observed by the courts. And although it may be difficult to give a very solid or satisfactory reason for the rule, yet we believe the authorities do declare that an action of covenant upon an instrument riot under seal, though it may contain the statement "signed, sealed, and delivered," can- not be sustained. The following cases seem to decide that point : Leroy v. Beard, 8 How. 451 ; Andrews et al. v. Hariot, 4 Cow. 508. It was insisted upon the argument of the cause, by the counsel for the respondent, that the appellant was estopped from denying that the instrument was sealed, on the ground of having signed, acknowledged, and delivered the same as a deed and having re- ceived the respondent's money as part consideration for the land conveyed. We do not know of any ease that has carried the doc- trine of estoppel to this extent. The doctrine of estoppel is of course familiar to every lawyer, and it is not necessary to go into it. We do not think it can be so applied as to prevent the appel- lant from insisting that the action should have been assumpsit and not covenant. Again, it was not contended that the court ought to presume that the instrument had a seal when executed, or in other words, presume a fact to exist which the court found did not ex- ist. The court found that the instrument was not sealed, and this finding does away with all presumption to the contrary. . . . Judgment reversed. See "Covenant, Action of," Century Dig. § 6; Decennial and Am. Dig. Key No. Series § 1. Sec. 1.] RIGHTS GROWING OUT OF CONTRACT. 629 FINLBY V. SIMPSON, 22 N. J. L. 311, 331. 1850. Covenant Lies on a Sealed Instrument Only. The Rule and the Excep- tions Thereto. [Covenant upon an alleged covenant on behalf of the defendant as grantee in a deed poll, the defendant having accepted the deed, but never having signed and sealed it. Defendant pleaded non est factum. Verdict directed against the defendant, subject to the opinion of the su- preme court as to whether there was evidence that defendant had made the covenant alleged. Affirmed. The evidence was that the plaintiff conveyed the land to the defendant by a deed in the usual form, but containing a recital: That there was a mortgage on the land for a certain sum; that such sum was computed as part of the purchase money for the land; and that defendant "assumed to pay" such sum in discharge of the mortgage. This deed was signed and sealed by the plaintiff, grantor, but not by the defendant, grantee, although the defendant accepted the deed and took possession of the land. The defendant having failed to pay the sum due on the mortgage, the plaintiff was forced to pay it. Having paid it, he sued defendant on the clause in the deed above mentioned. The defendant insisted that this action of covenant would not lie, be- cause the instrument upon which the action was brought had never been actually signed and sealed by the defendant or by his authority.] Green, C. J. The general principle, that an action of covenant can only be sustained where the instrument upon which the action is brought has been actually signed and sealed by the party, or by his authority, is abundantly sustained by the authorities cited by the counsel of the defendant. There are, however, exceptions, of which actions upon the custom of London, actions against the king's lessee by patent, and against remaindermen, are admitted instances. The only inquiry is, whether an indenture [deed poll] of bargain and sale, purporting to be inter partes, by which an es- tate is conveyed to the grantee, if the grantee accept the deed, and the estate therein conveyed, though the indenture be not sealed and delivered by him, is not his deed, as well as the deed of the grantor. The affirmative of this proposition is sustained by the following authorities, cited, with many others, in the brief of the plaintiff's counsel: Co. Lit. 231, a, 230, C, note 1; Shep. Touch. 177; 4 Cruise Dig. 393, "Deed," Tit. 32, c. 25, § 4; 3 Com. Dig. "Covenant," A 1, "Fait," A 2, C 2; Vin. A. C. "Condi- tion," I, a 2 ; Burnett v. Lynch, 5 Bam. & Cress. 589 ; Dyer, 13 C. PI. 66. A modern elementary writer, of high reputation (Platt on Cov. 18), denies the doctrine deduced from these cases. . . He admits, however, that the contrary doctrine has been received without scruple by the profession, has been adopted by writers distinguished for their legal attainments, and that, perhaps, it has been too long established to be now reversed. There is, in our judgment, no reason why the doctrine should be reversed. In the present ease the verdict ought not to be disturbed if it can be sustained consistently with legal principles. It is mani- festly in accordance with the truth and justice of the case. The objection goes to the form of the remedy, rather than to the sub- 630 BIGHTS GROWING OUT OF CONTRACT, [Ch. 8. staiitial right of the party, or to the title of the plaintiff to re- dress. The nature of the covenant, moreover, is fully stated upon the face of the declaration. "Whether the facts there stated did or did not constitute a covenant on the part of the defendant, was a question of law, which might well have been raised by demurrer. To give the defendant the benefit of the exception now may oper- ate utterly to defeat the claim of the plaintiff. It is consistent neither with law nor justice that the defendant should hold the title without paying the price. These considerations cannot affect the legal principle, but if the verdict be in accordance with a doc- trine long established, and often recognized, they afford strong reasons why that doctrine should not lightly be disturbed. The rule to show cause must be discharged. All the authorities agree that the grantee in a deed, who accepts the deed, is bound by its conditions and the covenants on his part, whether he signed and sealed it or not; but whether this obligation is one that would have been enforced by an action of covenant at common law, or by assumpsit upon the implied undertaking, the authorities do not agree. See Mordecai's L. L. 841; 11 Cyc. 1045, and notes, 6 L. R. A. (N. S.) 436, and notes. See "Covenant, Action of," Century Dig. § 12; Decennial and Am. Dig. Key No. Series § 6. PERKINS V. LYMAN, 11 Mass. 76, 82. 1814. Covenant and Debt, When Concurrent Remedies. [Debt for a sum certain claimed to be due as liquidated damages for breach of a sealed agreement, which agreement contained a clause bind- ing the defendant to pay to the plaintiff the sum sued for in this action if the defendant violated the other terms thereof. The jury found that the defendant had violated this agreement, and upon this verdict the plaintiff moved for judgment for $8,000, which was the sum certain which the defendant, by the clause above mentioned, had covenanted to pay as damages for such violation. The defendant prayed a hearing in chan- cery (pursuant to a statute providing for such practice), upon his con- tention that the $8,000 was not liquidated damages but a penalty or for- feiture. Only that portion of the opinion which states when a plaintiff has an election to bring covenant or debt, is here inserted.] Per Curiam. . . If we look to the words themselves, there is a covenant, on the part of the defendant, that he will not, in his own name, etc., directly or indirectly, be interested in any voyage to the northwest coast of America, etc., for the term of seven years. Then he binds himself in the penal sum of 8,000 dollars for his faithfully and strictly adhering to this contract. It is not said, if he does so. contrary to his agreement, then he will pay that sum as a satisfaction. Nor is there any thing ex- pressed, which would conclude the plaintiffs, unless it be their .form of action, when the amount of damages should exceed 8,000 dollars, from demanding to the extent of their loss. Lord Mans- field expresses the distinction of liquidated damages, and a pen- alty to secure the performance of a contract, very closely and ac- curately, in the case of Lowe v. Peers (4 Burr. 2227), referred to Sec. 1.] RIGHTS GROWING OUT OP C<;iNTRACT. 6[i\ in the argument of the case at bar. There is a difference, says his lordship, between covenants in general and covenants secured by a penalty or forfeiture. In the latter case, the obligee has his elec- tion to bring an action for the penalty, after which he cannot re- sort to the covenant; or to proceed upon the covenant, and re- cover more or less than the penalty. Upon the whole, we are of opinion that the demand, in this case, is not for damages ascertained or liquidated by the parties to the contract, but for a penalty or forfeiture annexed to articles of agreement, a breach of which has been found; and therefore, by the statute, the defendant is entitled to a hearing in chancery be- fore judgment shall be rendered. See Lowe v. Peers, 4 Burr. 2225, inserted at § 2 of this chapter. Covenant is the proper remedy on a sealed obligation to pay a certain sum in iank notes, because the plaintiff can only recover damages on such an agreement, for the reason that fiorafc notes are not money — ^they are only called money in common parlance — the damages on the breach of such a covenant being the value of the bank notes. Scott v. Conover, 6 N. J. L. 222. Where two parties execute a contract and one seals it but the other simply signs without sealing it, it is the deed or covenant of one and the simple contract of the other. Therefore, the one who seals it must be proceeded against in debt or covenant — depending on whether or not the damages are liquidated — while the other who does not seal must be sued in assumpsit. Brown v. Bostian, 51 N. C. 1; Holland v. Clark, 67 N. C. 104. See "Election of Remedies," Century Dig. § 2; De- cennial and Am. Dig. Key No. Series § 2. GYLBERT v. FLETCHER, Croke's Charles I, 179. 1630. Covenant Against an Infant. Covenant against an apprentice for departing from his service without license within the time of his apprenticeship. The de- fendant pleaded, that at the time of making the indenture he was within age ; and. thereupon it was demurred. It was argued at the bar, that this indenture should bind the infant, because it was for his advantage to be bound apprentice to be instructed in a trade. He is also compellable by the 5 Eliz.' c. 4. to be bound out an apprentice. But all the court resolved, that although an infant may volun- tarily bind himself apprentice, and if he continue apprentice for seven years may have the benefit to use his trade, yet neither at the common law, nor by any words of the 5 Eliz. c. 4, shall the covenant or obligation of an infant for his apprenticeship bind him. But if he misbehave himself, the master may correct him in his service, or complain to a justice of the peace to have him pun- ished, according to the statute. But no remedy lieth against an infant upon such covenant; and therefore it was adjudged for the defendant. Vide 21 Hen. 6, 31 ; 21 Ed. 4, 6 ; 9 Hen.' 6, 8. See "Apprentices," Century Dig. §§ 35, 36; Decennial and Am. Dig. No. Series § 19. 632 RIGHTS GROWING OUT OF CONTRACT. [CIl. 8. Sec. 2. Action of Debt. GREGORY V. THOMSON, 31 N. J. L. 166. 1865. Action of Debt Explained. Collateral Agreements. Negotiate Instru- ments. Debt, Covenant, or Assumpsit, When the Appropriate Remedy. [Action of Debt against a surety on a sealed contract. Demurrer, for that Debt was not the proper action. The opinion is on the demurrer. Demurrer sustained.] Beasley, C. J. The promise of the defendant, which is de- clared on in this ease is, that he would pay the debt of the tenant if the tenant should make default in payment; and the only question raised by the pleadings is, whether an action of debt is the proper remedy for the breach of such contract. I have been unable to find any case in which an action of debt has been sustained on a collateral promise to pay the debt of an- other. At a very early period in the English law, this was the form of action provided for all matters in controversy arising out of mere personal contracts. Thus, Reeves, in his History of the Common Law, vol. 1, p. 159, describing the methods of legal pro- ceeding between the reign of William the Conqueror and that of King John, says: "When they (the parties) were both in court, then it was to be considered how the demand arose. This might be of various kinds, as ex causa mutui, upon a borrowing ; ex causa venditionis, upon a sale; ex commodato, upon a lending; ex locate, upon an hiring ; ex deposito, upon a deposit or by some other cause, by which a debt arose; for at this time all matters of personal contract were considered as binding only in the light of debts ; and the only means of recovery, in a court, was by this ac- tion of debt." In all the above instances it will be noticed that the consideration passed from the party who became the creditor to him who became the debtor, so that the contract of the party receiving such consideration was to pay his own debt and not that of another. Such transactions had no connection, incidentally, with third parties. The debtor was he who received the considera- tion ; he alone owed the debt and this action lay only against him. Such being the origin of this form of action, it is not difficult to perceive how it was that the doctrine came to prevail that it was not applicable, as a remedy, in case of a breach of promise to pay money which was primarily due from a third party. In the some- what subtle theory of the times it was deemed that such a promise did not create a debt. The party originally liable remained the debtor ; he who made himself surety did not thereby impose upon himself a debt, but a collateral assumption, which could not be en- forced by an action of debt. This distinction was adopted at a re- mote era and appears ever since to have been uniformly recognized and maintained. Thus, in one of the oldest cases upon the sub- ject, 18 Ed. Ill, 13, it is said: "If A bought of me certain goods for a certain sum, and B at the same time undertook to pay for Sec. 2.] RIGHTS GROWING OUT OP CONTRACT. 633 them at the day if A did not ; if A should not pay for them, debt could, not be brought against B, because it would sound in cove- nant." And again in another case, 9 Hen. V. 14, the law is thus stated: "If C recover ten pounds against A, and B shall say to C that if he will release the ten pounds to A he will be his debtor, and accordingly the ten pounds are released to A, an action of debt will not lie against B, as this sounds in covenant." Other cases to the same purpose will be found collated in 3 Com. Dig. tit. Debt, B, 1, p. 373. The existence of this ancient rule of law has never been denied, although it has been held that in some instances it has been mis- applied. Thus, in an anonymous case reported in Hardres, 485, and which is frequently referred to, it was held that an action of debt brought by the payee of a bill of exchange against the ac- ceptor, could not be supported, on the ground that the engagement was collateral, "and that," in the words of the authority, "the custom of merchants does not extend so far as to create a debt; only makes the acceptor onerabilis to pay the money." In Bishop V. Young, 2 Bos. & P. 78, Lord Eldon reviews this case and seems to consider it rests on solid reasons; and it is also treated with a like respect by Justice Lawrence in Priddy v. Henbvey, 1 B. & C. 674. I am aware that the decision in Hardres has been over- ruled in this country, but such reversal has not been rested on grounds which at all affect the point now to be elucidated. In Raborg v. Peyton, 2 "Wheat. 385, the supreme court of the United States refused to adopt the rule of law in question in its unlimited application to commercial paper, holding that an action of debt will lie by the payee or endorsee of a bill of exchange against an acceptor, where it is expressed to be for value received. But as the court declared that an acceptance was not a collateral engagement to pay the debt of another, but that, on the contrary, it was an absolute engagement to pay the money to the holder of the bill and that the engagements of all the other parties were merely collateral, it is evident that this case is no authority for the hypothesis that debt will lie on a collateral agreement. The modern English authorities seem to sustain, with one voice, the ancient rule in question. Chitty, vol. 1, p. 116, treating of the action of assumpsit, says : ' ' "Where a simple contract creates a collateral liability, as for the payment of a debt of a third person, debt not being sustainable, assumpsit is the only form of action." To the same effect see the same author, pages 124, 128. The same rule has been recognized by the courts of New York. Pierce v. Crafts, 12 Johns. 90; Wilmarth v. Crawford, 10 Wend. 341. Nor does it at all affect the principle that the engagement sued on is contained in an instrument under seal. The question in this form was recently subjected to the criticism of the Court of Ex- chequer. In Randall v. Rigby, 4 M. & W. 129, it appeared upon the pleadings that the lands had been conveyed to the defendant and others, to the use that the plaintiff should receive and take the rents; the covenant sued on was to the effect that the defendant 634 RFGHTS GROWING OUT OP CONTRACT. \C'h. 8. and the other grantees would pay said rents; on these facts the court maintained that such covenant was collateral, and on that account would not support an action of debt. Harrison v. Mat- thews, 10 M. & "W. 767, was decided on the same principle. It has not been unnoticed that in Bullard v. Bell. 1 Mason. 292, Fed. Cas. No. 2,121, Judge Story intimated that, in his opinion, it would not be overstraining the old doctrine regulating this form of action, to apply it to all collateral undertakings to pay a sum cer- tain. I confess to an inclination in the same direction, and on this account my examination of the original history of the action has perhaps been more elaborate than would otherwise, from the state of the authorities, have seemed to me requisite. But upon reflection I can see no advantage in extending the form of remedy. The limits of the action, in the nature of things, must be arbi- trary; the chief concern being to have those limits definite and stationary. To extend the formula is merely to unsettle its bound- aries — a result which would, at least, be attended with the mis- chief of inconvenience. If the sphere of the action of debt is to be enlarged at this time of day, what legal institute, consisting of a mere mode of proceeding, is to be deemed stable ? If this form of action is liable to change, so is every other, and the consequence would be that the lines of demarkation between the several forms would soon become so obscure as not to be easily definable. I think the use of the action should be restricted within the con- fines of the ancient practice. In my opinion the demurrer should be sustained. See "Debt, Action of," Century Dig. §§ 1-14; Decennial and Am. Dig. Key No. Series § 1. DOZIER V. BRAY, 9 N. C. 57. 1822. What Amouni Can Be Recovered in Debt? [Action of Debt for a penalty under a statute giving a qui tarn action for double the amount of the loan. The amount lent was $80, and the penalty sued for was $160. The verdict was against the defendant for $155 only. Defendant moved in arrest of judgment, for that the action was debt and. the verdict wais for less than the amount sued for. Motion overruled. Judgment against the defendant, from which he appealed. Affirmed.] Taylor, C. J. The verdict shows that the unlawful contract, set forth in the declaration, had been made, and that the defend- ant had received the benefit of it usuriously. It was an action of debt qui tam, upon the statute of usury, in which the sum borrowed was eighty dollars, and the penalty claimed in the declaration was one hundred and sixty. The verdict of the ,iury was for one hun- dred and fifty -five, and for this cause the defendant moves in arrest of judgment. The exception was properly overruled; for the distinction is well settled between an action of debt founded upon a specialty or upon a contract and one founded upon a stat- ■SVc. 2.] RIGHTS GEO WING OUT OP CONTRACT. 635' ute giving an uncertain sum by way of penalty. In the first ease the verdict cannot be for a less sum than is demanded, unless it be found that part of the debt was satisfied ; but in the latter case the verdict is good, although a less sum than is demanded is found to be due. The statute in this case gives a penalty of double the sum borrowed, and therefore it is a matter of calculation for the jury, after the amount of the sum borrowed is proved. It is not to be distinguished from cases arising under the 2nd and 3rd Ed. 6, for not setting out tithes, where the penalty given is treble the value of the tithes; yet the jury may find the value of the tithes subtracted to be less than the value alleged in the declaration. Cro. Jac. 498. The judgment must consequently be affirmed. Henderson, J. It is not correct to say that in actions of debt the precise sam demanded must be recovered; all that is required is that the contract stated in the declaration should be proven. The common opinion that the sum demanded and no other can be recovered arose from this : this action is most commonly brought on specialties and judgments which show a certain and precise sum due, and there could not well be a different sum recovered without having proven a contract different from the one laid ; the effect was taken as the cause of failure ; it was the variance between the evidence and the contract stated, and not the verdict of the jury drawn from that evidence. This is abundantly proven in ac- tions of debt upon the usurious loan of goods, and debt upon simple contract ; in this case there is no cause for arresting the judgment, nor is there cause for a new trial, for it does not appear that the evidence proved a different cause of action from the one stated in the declaration. For what cause, when the plaintiff proved a usurious loan of eighty dollars, the jury did not give him one hundred and sixty dollars, to-wit, double the sum loaned, but only one hundred and fifty-five, I am unable to say; but because the jury have given him less then he is entitled to, is no reason that the court or the law should take that from him. "The rule is not that in Debt the plaintiff must recover the sum de- manded or not at all; hut that the proofs must agree with his allegations. The plaintiff may recover less." Waugh v. ChaflBn, 14 N. C. at p. 103. In Debt, the exact sum demanded in the writ need not be found by the jury, when, from the nature of the demand, the amount is uncertain; but when the contract as stated in the declaration fixes the amount due, the verdict must agree with the writ or judgment will he arrested. Dowd v. Seawell, 14 N. C. 185, headnotes; see this case inserted post in this sec- tion. See "Debt, Action of," Century Dig. §§ 42, 47; Decennial and Am. Dig. Key No. Series §§ 17, 18. CLARK V. GOODWIN, 1 Blackf. 73, 74. 1820. How to Enter Judgment in Debt on a Penal Bond. [Action of Debt by Goodwin against Clark et al., upon a penal bond (or Clark's faithful performance of certain duties as deputy sheriff. The defendants put in a plea to which the plaintiff demurred. The court be- low overruled the demurrer and rendered a final judgment for the pen- alty of the bond, instead of rendering an interlocutory judgment (or the ■6^3 RIGHTS GROWING OUT OF CONTRACT. [Ch. 8. penalty of the bond and postponing the final judgment until the dam- ages should be assessed, at a subsequent term, by a jury. Clark et al. carried the case to the supreme court by writ of error. Reversed.] Blackford, J. . . By the common law, the obligor was bound to pay the whole penalty if he failed to comply with the •condition at the time specified. As a remedy for this evil the stat- ute of 8 and 9 Will. 3, was enacted. We have a similar statute, which points out the practice to be pursued in cases like the one under consideration. The opinion of the court, upon the demur- rer, in favor of the plaintiff below, is not called in question; but in immediately rendering an absolute judgment for the penally of the bond and interest, they committed an error. This was a penal bond conditioned for the performance of covenants. In such cases, when the plaintiff below succeeds on demurrer, the formal entry of final judgment ought to be stayed, until damages are assessed by a jury upon the breaches assigned according to the statute, and the assessment is entered of record. Judgment is then rendered for the penalty of the bond, and the costs of the suit; and the assessment regulates the sum to be levied on the execu- tion. The judgment for the penalty remains as a security for further breaches. Judgment reversed. In a note to the principal case it is said: "To be relieved from the pen- alty by the payment ot what was justly due, the party, prior to the 8 and 9 Will. 3, had to resort to chancery. The statute remedies that incon- venience, and permits no other recovery at law than the damages which a jury may assess, for the breaches of covenant assigned and proved, with costs. Although the statute is that the. plaintiff may assign, etc., the decisions have been uniform that he has no choice, but must do so in all cases within the act. Drage v. Brand, 2 Wils. 377; Hardy v. Bern, 5 T. R. 636; Roles v. Roswell, Ibid. 538; Waloott v. Goulding, 8 T. R. 126; Welch v. Ireland, 6 East, 613. The few cases to which the statute has been held not to apply, are bonds for the payment of a sum of money in gross, 2 W. Saund. 187, n. 2; replevin bonds, where goods are distrained, Middleton v. Bryan, 3 M. & S. 155; bail bonds. Moody v. Pheasant, 2 Bos. & P. 446. . . The reason the statute does not apply to bail and re- plevin bonds is, that the court, in the former by statute of 4 Anne, and in the latter by 11 Geo. 2, can afford to the party the necessary relief. Middleton v. Bryan, supra. See Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878, which distinguishes between the penalty in a bond to secure the performance of conditions, and a statutory penalty secured by bond. In the one case, damages only are recoverable; in the other, the whole penalty of the bond is recover- able. The interlocutory judgment for the penalty of the bond — such judgment to be discharged upon the payment of such damages as may thereafter be assessed — if properly docketed, becomes a lien for the full amount of the penalty. This lien is in no wise impaired by the fact that the amount of the judgment may be reduced by the further action of the court; until such further action, it stands for the full amount. Darden V. Blount, 126 N. C. at p. 249, 35 S. E. 479, citing Rothgerter v. Wonderly, 66 111. 390. See note to Carmichael v. Moore, 88 N. C. 29, inserted post in this section. See "Bonds," Century Dig. §§ 244, 247; Decennial and Am. Dig. Key No. Series §§ 136, 138. (S'cC. 5.] RIGHTS GROWING OUT OP COXTRACT. 637 LOWE V. PEERS, 4 Burrows, 2225, 2228. 1768. When Dett and Covenant are Concurrent Remedies. [Covenant by Catherine Lowe on a contract signed and sealed by the defendant, in which contract was this clause: "I do hereby promise Mrs. Catherine Lowe that I will not marry any person besides herself. If I do, I agree to pay to her 1,000 pounds within three months next after I shall marry anybody else." This bond was made in 1757, and in 1767 defendant married another woman. Verdict for 1,000 pounds against the defendant. Many points were made which came up for discussion on a motion for a new trial. The judgment was arrested upon a point not material to the subject under consideration. In the course of the dis- cussion on these various points. Lord Mansfield said:] This is not an action brought against him for not marrying her [the plaintiff] , or for his marrying any one else : the non- payment of the 1,000 pounds is the ground of this action — "that he did not. when requested, pay the 1,000 pounds." The money was payable upon a contingency; and the contingency has hap- pened. Therefore it ought to be paid. There is a difference between covenants in general, and cove- nants secured by a penalty or forfeiture. In the latter case, the obligee has his election. He may either bring an action of debt for the penalty, and recover the penalty (after which recovery of the penalty, he cannot resort to the covenant ; because the penalty is to be a satisfaction for the whole) ; or, if he does not choose to go for the penalty, he may proceed upon the covenant, and re- cover more or less than the penalty, toties quoties. And upon this distinction they proceed in courts of equity. They will re- lieve against a penalty, upon a compensation : but where the cove- nant is "to pay a particular liquidated sum," a court of equity cannot make a new covenant for a man ; nor is there any room for compensation or relief. As in leases containing a covenant against plowing up a meadow; if the covenant be "not to plow," and there be a penalty, a court of equity will relieve against the pen- alty, or will even go further than that (to preserve the substance of the agreement) : but if it is worded, "to pay five pounds an acre for every acre plowed up," there is no alternative, no room for any relief against it — no compensation — it is the substance of the agreement. Here, the specified sum of 1,000 pounds is found in damages; it is the particular liquidated sum fixed and agreed upon between the parties, and is therefore the proper quantum of the damages. See Perltins v. Lyman, 11 Mass. 76, inserted at § 1, ante, of this chapter. See "Election of Remedies," Century Dig. § 2; Decennial and Am. Dig. Key No. Series § 2. FRASER v. LITTLE, 13 Mich. 195, 198-202. 1865. Can the Recovery Exceed the Penalty of the Bond? fAction of Debt brought by Little et al. against Fraser et al., upon a replevin bond in the penal sum of $800. Judgment against Fraser ©t al., who carried the case to the supreme court by writ of error. Reversed. The judgment below was for the penalty of the bond and interest on- 638 RIGHTS GKOWING OUT OF CONTRACT. [CJl. 8. such penalty, making a total of $1,010.31. The interest was allowed as damages. At the conclusion of the opinion of Martin, C. J., it is said: "I think the judgment should have been for the sum of $800 only, and that the judgment of the circuit court should be reversed and a new trial ordered."] Campbell, J. The only question in this case is, whether judg- ment can be given on a replevin bond for more than the penalty and costs. The action was an action of debt on a bond in the pen- alty of $800, and judgment was rendered for an. additional sum of $210.31, by way of damages for its detention, in addition to costs of suit. I think there is no foundation for an.y such judgment. "Where a bond or specialty is given in the amount actually due, and not in a penalty, there is no reason and no rule which will prevent a recovery of interest on the actual debt, for which the bond is only evidence under seal. But where an undertaking or condition is secured by a penal bond, which is not supposed to represent the actual debt by its penalty, such penalty never became the actual debt, except by way of forfeiture, and upon such a forfeiture in- terest was never allowed to run by the common law or by statute. And the cases cited on the argument, from Massachusetts and Kentucky, which assume that interest runs merely from the fact that the penalty became the debt upon forfeiture, are entirely un- supported and would probably never have been made had not the .actual debt in these cases equalled or exceeded the penal sum. As authorities, they are based upon a false assumption, and cannot be maintained on any such principle. In England, the rule of lia- bility upon bonds in a penalty has been almost entirely uniform, and the only cases extending it beyond the penalty and costs have been overruled and disregarded. The cases are collected in Hurle- stone on Bonds, 107, 108, and the rule is there laid down in con- formity with the prevailing authorities. It cannot be said that under the English common law decisions there is any room for controversy on the subject. It is only where a suit is brought on some judgment already rendered on a bond, as in Blackmore v. Flemyng. 7 T. R. 4:42, and McClure v. Dunkin, 1 E. 436, or where an action is brought upon some distinct covenant in a bond, or other obligation, that the penalty becomes unimpor- tant ; but even in such cases, the penalty is not made the debt on which interest runs. The right to a decree in equity, beyond the penalty of a bond, is denied as clearly and consistently as at law. "Where a debt is secured as such by other securities besides a bond, the fact that a bond has been taken will not usually affect the rem- edy on the other obligations. But there is no authority for allow- ing any recovery or account beyond the penalty, when the bond becomes material. The only cases where a different resvilt has been reached are where the bond debtor has resorted to equity to obtain relief from legal proceedings; and then it has been held that, as he who seeks equity must do equity, he might be com- pelled, after submitting his case to the jurisdiction of equity, to Sec. ,2.] RIGHTS growing out op contract, 639 do what was just under the circumstances, and not to reap advan- tage from a delay which he has compelled his adversary to un- dergo. These rules, and this class of exceptions, will be found well settled by the decisions. Mackworth v. Thomas, 5 Ves. 329 ; Tue V. Winterton, 3 Brown, Ch. 489 ; Knight v. McLean, 3 Brown, Ch. 496 ; Hughes v. Wynne, 1 M. & K. 20 ; Clarke v. Seton, 6 Ves. 411 ; Clarke v. Lord Abingdon, 17 Ves. 106 ; Pulteney v. Warren, 6 Ves. 92 ; Grant v. Grant, 3 Russ. 598 ; s. c, 3 Sim. 341 ; Jeudwine v. Agate, 3 Sim. 129 ; Walters v. Meredith, 3 Y. & Coll. 264 ; see also Cooper's Cases in Chancery (Practice), 200 et seq. In Slower v. Kip, 6 Paige 91, the case was the same as in Clarke V. Lord Abingdon, and the decree was manifestly correct, because the mortgage was conditioned to secure the debt, and not the pen- alty. If designed to go further, the case is not sustained by the authorities; but it should be understood with reference to the facts presented. In Farrar v. U. S., 5 Pet. 372, which was an ac- tion on a revenue bond, it was held that no judgment could be given bevond the penalty, and judgment below was reversed on that ground. In U. S. v. Arnold, 1 Gal. 348, Fed. Ca.s. No. 14,46f), although interest was awarded on a penalty, yet the question of such allowance was not discussed, and is not mentioned on the appeal, which was upon an entirely different question. Arnold v. U. S., 9 Cr. 104. In New York, in Clark v. Bush, 3 Cow. 151, and Fairlie v. Law- son, 5 Cow. 424, it was held, after an elaborate comparison of cases, that a surety on a bond could not be held beyond the pen- alty, whether the principal could be or not. ' Where the bond is joint, no distinction could be taken between principal and surety, and the cases generally make no discriijiination between them where they are sued in deljt on bond, although some cases, denying the universal effect of the penalty, admit it as to sureties. In Brainard v. Jones, 18 N. Y. 35, it was held that, in a case like the present, interest might be recovered on the penalty. The reasons for the decision are not new, nor such as any mind of ordinary capacity could overlook. It is in direct conflict with the mass of decisions, and in conflict with the principle which underJics them all, that a penalty is not to he enlarged under any circumstances, and will not be enforced beyond its letter. With great re.spect for the author of the decision, I prefer to rest upon the known and settled rules of the law, which, in all such cases as the present, must be more in accordance with the understanding of the par- ties than any other. When the statute requires a bond in double the value of property, as fixed by sworn and disinterested apprais- ers, it must be presumed that neither the law nor the sureties could anticipate the necessity of any larger margin, to meet the possible views of another body of appraisers in the jury box. I think the settled rule is a just one and should be adhered to. I therefore concur in the views of the chief justice. The ruling in this case is sustained in New Home Sewing Machine Co. V. Seago, 128 N. C. 158, 38 S. E. 805. The contrary view is ahly presented 640 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. in the dissenting opinion ot Claris, C. J., p. 162, where the authorities for his position are cited. See also State v. Ford, 5 Blackford, 392, where it is said by Blackford, J.: "By the common law, the penalty of the bond wae, on a breach of the condition, always recovered in a suit at law, no matter whether the damages sustained were more or less than the pen- alty. According to the statute of Will. 3, when the damages are less than the penalty, the amount of the damages is all that can be recovered even at law; and that is the only change in the law made by the statute. If the damages exceed the penalty, the common law governs, and the penalty is the debt. That is all that the obligor, in any event, has bound himself to pay, and all, of course, that can be recovered, except the costs of suit." See "Replevin," Century Dig. § 497; Decennial and Am. Dig. Key No. Series § 124. DOWD V. SEAWELL, 14 N. C. 185. 1831. Debt for a Penalty Given by i^tainte. What An.ount Can Be Recovered in Debt. [Action of Debt to recover the penalty given by statute for violation of the regulations to be observed in celebrating a marriage. Plea, nil debet. Verdict against defendant. Judgment arrested on defendant's motion. Plaintiff appealed. Affirmed. The writ of Debt demanded "fifty pounds which the defendant owes and unjustly detains to plaintiff's damage one hundred dollars." The verdict was "that the defendant does owe the sum of fifty pounds reduced by the scale to twenty-four pounds, ten shillings."] EuFFiN, J. We think the decision of the superior court right, and that the .judgment must be arrested. It is an action of debt for the penalty for marrying a couple without a license. The sum demanded is one hundred dollars; and the verdict is for twentj'- four pounds, ten shillings. The act of 1778 (Rev. c. ^34), gives a penalty of fifty pounds ; which, when scaled, amounts to the sum found by the jury — twenty-four pounds, ten shillings. It was formerly thought that the action of debt, being for an entire thing, could not be maintained unless the exact sum — neither more nor les.s — was recovered. This is not now so con- sidered, nor has been for a long time. And the rule is, that in ac- tions, where from the nature of the demand the true debt is un- certain, it may be alleged to be large enough to cover the real debt, and there shall be a verdict according to the truth, and judgment thereon. Hence, in debt on simple contract, the declaration is good although the sums demanded in several counts do not amount to or exceed the sum demanded in the writ, or the recital of it in the beginning of the declaration. McQuillin v. Cox, 1 H. Bl. 249; Lord V. Houston, 11 East, 62. And in Aylett v. Lowe, 2 Bl. R. 1221, it was held, that upon a verdict for one hundred pounds in debt for two hundred pounds, on a mutuatus, there should be judgment for the plaintiff. And so too in debt on a specialty, if the deed does not of itself show the certainty of the whole demand, but the extent is matter of proof aliunde, the verdict may be ac- cording to the truth, and if it be within the sum demanded, there shall be judgment for the plaintiff. . . . ticC. 2.] EIGHTS , GROWING OUT OF CONTRACT. 641 The same principles apply to actions of debt for penalties given by statute. As in every case, the declaration must set out the matter, whether of contract or law, whereby the demand arises ; so in these actions the plaintiff must show a statute giving the pen- ally demanded by him, and charge the acts which show the de- fendant to be guilty of the offense within the statute. These alle- gations are indispensable to enable the defendant to know for what he is sued, and to protect himself by plea to another action for the same matter. Anciently the statute was set out at full length. This was relaxed, and stating it by its title was then allowed. Afterwards a general reference to it by alleging the particular penalties given thereby, and concluding "against the form of the statute" was held sufficient, upon the grounds that the court was bound to take notice of all public laws, and that the particular statute was sufficiently identified by the statement of the penalty and of the acts forbidden by it. But certainly there must be some description of it ; and if there be no reference to it the declaration is bad. Scroter v. Harrington, 8 N. C. 192; Myddleton v. Wynn, Willes, 599. If, however, the statute itself gives an uncertain penalty, or a penalty to be measured by reference to some uncertain thing, then the sum demanded is not conclusive on the plaintiff, but he may recover according to" the certainty made by his proof, because he can do no more towards a more definite description of the statute or of the debt. In an action, therefore, for subtracting tithes against the statute 2 and 3 Ed. 6, which gives the treble value, the judgment shall be according to the verdict, though different from the sum demanded. Pemberton v. Skelton, Cro. Jac. 498. The court say there that the variance is no objection, because the stat- ute gives no certain sum, but only so much in reference to the value ; and the value cannot be positively estimated until it is done by the jury themselves. And the judges distinguish that case from an action grounded on a specialty in which the certainty of the debt appears, and from an action grounded on a statute which gives a sum certain ; in both which the precise sum must be demanded. This last position is, to be sure, but a dictum in that case, but it is the point of the decision in Cunningham v. Bennett, 1 Geo. 1, C. B., stated by Mr. Justice Buller in his Nisi Prius, a book of much authority. There it was held that a penal action could not be for less than the penalty given by the statute; and though the plaintiff had a verdict, judgment was arrested. I con- clude, therefore, that wherever a statute gives a certain sum in nuiuero, that exact sum must be demanded, else it cannot be taken to be the penalty given hy the stahite. Here the declaration con- forms neither to the act of 1741 nor that of 1778. The former gives fifty pounds proclamation money to the use of the parish, or, by the act of 1777, to the use of the county. The latter gives fifty pounds, scaled to 24.10 pounds, one-half to the informer and the other to the county. Consequentlj' the judgment must be ar- rested for this reason. Remedies — 41. 642 EEGHTS GROWING OUT OF CONTRACT. [Ch. 8. The other objection, that damages are demanded, is not a good one. They cannot be recovered, but it is not error to demand them. The case of Frederick v. Lookup, 4 Burrows, 2018, shows this; for the .judgment was reversed only as to the damages as- sessed, and affirmed for the debt, which was the penalty. Judg- ment affirmed. See Dozier v. Bray, 9 N. C. 57, Inserted ante in this section. That Debt is the proper remedy on a judgment, domestic or foreign, of a court of record or not of record, see Cole v. Driskell, 1 Blackford, 16. See "Debt, Action of," Century Dig. §§ 42, 47; Decennial and Am. Dig. Key No. Series §§ 17, 18. FARNHAM v. HAY, 3 Blackf. 167. 1833. Debt on Bond, etc., Payable in Installments. Joinder of Debt and As- sumpsit in the Same Action, [Action of Debt upon a sealed contract to pay the plaintiff $220 — one- half in one year and the other halt in two years. The action is for the first half, $110, it being the only amount due when this action was com- menced. The defendant demurred on the ground that Debt would not lie until both installments were due. Demurrer sustained, and judgment against the plaintiff, who carried the case to the supreme court by writ of error. Affirmed on this point. There were three counts in the dec- laration, two in Debt and one in Assumpsit. The third count, in Assump- sit, being good, the judgment below was reversed under the rule, that it one of several counts be good, a demurrer to the whole declaration must be overruled.] McKiNNEY, J. This is an action of debt. The declaration con- tains three counts. The first demands $110, and is founded upon a writing obligatory, bj^ which the defendant promised to pay the plaintiff the sum of $220, one-half to be paid in one year, and the other half in two years from the date, with interest. The sum thus demanded is the amount agreed to be paid in one year, it only having become due. The second is for the same amount, the half of $220 borrowed of the plaintiff, and agreed to be paid in one and two years. The sum claimed in this count is also the amount agreed to be paid in one year, it being then due. The third count is for $110 advanced, laid out, and expended for the defendant, at his special request, and agreed to be repaid to the plaintiff, with lawful interest, in one year. The defendant, on oyer, de- murred to the declaration. The demurrer was sustained and judg- ment rendered in his favor. The correctness of this judgment is questioned by the plaintiff in error. If either of the counts be good, the demurrer should have been overruled. The first two counts are for the recovery of the half of a sum of money agreed to be paid by installments, in one and two years, the whole debt not having become due. The laiu appears to he settled, that debt cannot be sustained for money payable by in- stallments, till the whole debt is due, unless the payment be se- cured by penalty. 1 Chit. PI. 106 ; Rudder v. Price, 1 H. Bl. 547 ; 2 Saund. 303, n. 6. Only one installment of the sum agreed to be Sec. 2.] KIGIITS GROWING OUT OP CONTRACT. 643 paid was due at the time this suit was instituted, consequently the action of debt was not appropriate. We cannot perceive that the operation of this rule can prove injurious ; for if the contract be under seal, upon non-payment of the installments as they re- spectively become due, the party has his remedy by action of cov- enant; or, if by parol, by that of assumpsit. Tucker v. Randall, 2 Mass. 283 ; Bac. Abr. debt, b ; Com. Dig. action, f ; Co. Lit. 292 ; 1 Chit. PL 93, 113. From this view the first two counts must be regarded as defective. The third count, however, is not liable to the same objection ; but as it is urged that it is insufficient, we will examine it and notice the defects that are suggested. This count is on the sim- ple contract, and may be joined in the same action with debt on bond, or other specialty, or with debt on judgment. 1 Chit. PI. 196 ; Bac. Abr. action, c; Com. Dig. action, g; 13 Johns. 462. Chitty (in 1 vol. on PI. 397), speaking of different counts for the same cause of action, says: "Though both counts are in the same declaration, yet they are as distinct as if they were in separate declarations, and consequently they must independently contain all necessary allegations, or the latter count must expressly refer to the former." The rule is certainly more positive, requiring en- tire independence and sufficiency in counts, when in the same dec- claration are joined different causes of action, and whether a plaintiff whose declaration contains more than one count, claims a recovery upon a right of action only, or u.pon several, cannot ap- pear except in evidence. Gould's PI. 171. "When counts are thus joined, they must be considered as constituting distinct causes of action, and a defect in one does not attach to the other. In an action thus brought, the defective count should be demurred to; but if, instead of a defective count, there is a misjoinder, the dec- laration would be bad on general demurrer. The third count may therefore contain a good cause of action, and, if the objection taken be not available, the circuit court erred in rendering judg- ment in favor of the defendants. . . . We are of opinion that the third count is good, and that the demurrer, being to the whole declaration, should have been overruled. Judgment reversed. As to actions on installments, see Jarrett v. Self, 90 N. C. 478, and Smith V. Lumber Co., 142 N. C. 26, 54 S. E. 788 (inserted supra ch. 6, § 3, a), which hold that a judgment on one installment is res judicata as to all other Installments due when the action was commenced, if such matured installments were not then sued on; but such an action is no bar to installments not then due. See further, as to actions on install- ments, Nesbit V. Riverside Ind. Dist., 144 U. S. 610, 12 Sup. Ct. 746; Blackwell v. DIbbrell, 103 N. C. 270, 9 S. E. 192; McPhail v. Johnson, 109 N. C. 571, 13 S. E. 799; Mordecai's L. L. 130-131; Mcintosh Cont. 586; 24 Am. & Bng. Enc. L. 790; 13 Cj'c. 411. See "Debt, Action of," Century Dig. § 24; Decennial and Am. Dig. Key No. Series § 7; "Actions," Cen- tury Dig. § 336; Decennial and Am. Dig. Key No. Series § 41. 64-1 RIGHTS GROWING OUT OF CONTRACT. [Gh. 8. HARTSFIELD v. JONES, 49 N. C. 309, 311. 1857. Debt Preferaile to Covenant or Assumpsit Where Plaintiff- Has His Election to Adopt Either. Judgment by Default in Debt. [Assumpsit brought in a justice's court on an account for medical services. The justice gave judgment for the plaintiff, and the defend- ant appealed to the county court, where he made default and judgment final was rendered against him for the amount of the justice's judgment, without ascertaining the damages by inquiry before a jury. Defendant then carried the case to the superior court by certiorari. In the superior court the defendant asked that the judgment final entered in the county court should be reversed and an interlocutory judgment should be en- tered, to inquire as to the plaintiff's damages to be recovered. The su- perior court refused to disturb the judgment of the county court, and the defendant appealed. Reversed.] Battle, J. . . . The suit commenced before a single jus- lice, by a warrant on a medical account for twenty-five dollars. The .justice gave a judgment for seven, and the defendant ap- pealed to the county court, giving bond with two sureties, for the appeal. The principal defendant did not enter any pleas in that court, and the plaintiff took judgment by default final for seven dollars. The defendant contends that the plaintiff had no right to take a final judgment, but was entitled to an interlocutory judgment only, upon which he could not have final judgment un- til he had his damages ascertained upon a writ of inquiry. In this we think he is right. The warrant which stands for a declara- tion is clearly in assumpsit. Upon a default in that action, which sounds in damages, the judgment is necessarily interlocutory, and no final judgment can be had until the damages have been ascer- tained upon a writ of inquiry. Stop. PI. 105; 1 Ch. PI. 122. In treating of the "election of actions," ]\Ir. Chitty says: "The action of debt is frequently preferable to assumpsit or covenant, because the judgment in debt upon a nil dieit, etc., is, in general, final, and execution may be taken out immediately, without the expense and delay of a writ of inquiry, which is usually necessary in assumpsit or covenant, in ease of judgment by default." See page 242. The act of 1808 (1 Rev. Stat. ch. 31, s' 96, Rev. Code, ch. 31, s. 91) obviated this difficulty in suits upon bills of exchange, promissory notes, and signed accounts, by authorizing the clerk to ascertain • the interest which might have accrued thereon, without a writ of inquiry, and directing the amount thus ascertained to be included in the final judgment of the court. The 105th section of the same chapter of the Revised Code has a provision (which is not to be found in the Revised Statutes) , having in view the same object in the case of appeals from the judgment of a justice to the county, or the superior court. After enacting that, in the ease of an issue, it shall be tried at the first term, it proceeds to declare that "when the defendant shall make default, the plaintiff, on such demands as are mentioned in section 91 of this chapter, shall have judgment in the manner therein provided, and. in other cases, may have his inquiry of damages executed forthwith by a jury." The last par- Sec. 2.] RIGHTS GROWING OUT OF CONTRACT. 645 agraph clearly recognizes the necessity of such a writ in those ac- tions which sound in damages, such as covenant and assumpsit. Our opinion is that the judgment of the superior court is erro- neous and must be reversed, and this must be certified as the law directs, to the end that the judgment of the county court may be reversed, and that an interlocutory judgment, that the plaintiff recover, be entered, upon which he may have his writ of inquiry executed preparatory to his final judgment. Judgment reversed. See "Assumpsit, Action of," Century Dig. § 171; Decennial and Am. Dig. Key No. Series § 32; "Justices of the Peace," Century Dig. § 723; Decennial and Am. Dig. Key No. Series § 188. CARMICHAEL v. MOORE, 88 N. C. 29. 1883. Deit on Official Bond in Which the State is the Obligee. "State ex rel.' [Action on the bond of a superior court clerk in which, by law, the state was the obligee. The action was not brought in the name of the state upon the relation of Carmichael, but simply in the name of Car michael. Upon this ground the defendant demurred. Demurrer over- ruled and defendant appealed. Reversed.] RuB'PiN, J. This appeal is taken from a judgment of the su- perior court overruling a demurrer to the complaint, and but a single point need be considered. The plaintiffs sue upon the official bond given by the defendant, Moore, as clerk of the superior court of Robeson county, with the other defendants as his sureties — the breach assigned being his failure to pay over certain money which came to his hands 'for the plaintiffs. The bond is made payable to the state, but the action is brought, and the complaint filed, in the names of the parties in- terested, and this is one of the grounds of demurrer. The bond sued on is the property of the state, and the only au- thority the plaintiffs have for putting it in suit is that which is specially given in the statute and which in terms is limited to a suit brought in the name of the state. Bat. Rev. ch. 80, s. 11. Such is the plain provision of the law, long recognized, and sup- ported by the uniform practice of the courts. The statute, though an ancient one, has been re-enacted since the adoption of the Code, and the court would therefore feel themselves bound by it, as the latest declaration of the law, even in case of a conflict in the pro- visions of the two instruments. But in fact there is no such con- flict in this particular. The requirement of the Code that ' ' every action must be brought in. the name of the real party in interest," was never intended to be applied to actions upon official bonds, made payable to, and held by the state, and intended to be sued upon by every person injured by the neglect of the officer, and as many as might be injured, until the whole penalty should be exhausted — and all, not by reason of any property in the bond itself, but by virtue of the authority specially granted by the stat- ute. As the right to sue upon the bond is wholly derived from 646 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. the statute, it must be exercised in the manner there provided and in no other way. As reported, the case of Little v. Richardson, 51 N. C. 305, seems to furnish the plaintiffs with a precedent ; but upon looking to the original papers, we find that the action was in fact brought in the name of the state. So far as our investiga- tions go, there is not a single authority which supports the manner of bringing this action. The judgment of the court below overruling the demurrer is therefore reversed, and judgment will be entered here dismissing the action. Reversed. If the state Is not made a party — If the action is not "State ex rel."— the objection must be taken in apt time or It is deemed to be waived. Brown v. McKee, 108 N. C. 387, 13 S. B. 8; Mann v. Baker, 142 N. C. 235, 55 S. E. 102. Such defect may be cured by amendment, which may be allowed even in the supreme court after the case has reached that court upon an appeal. Grant v. Rogers, 94 N. C. at p. 760; "Wilson v. Pearson, 102 N. C. 290, 9 S. E. 707; Joyner v. Roberts, 112 N. C. at p. 115, 16 S. E. 917. The penalty of the bond fixes the jurisdiction regardless of the "sum demanded" as damages for the breach; the penalty is the "sum demanded." Pell v. Porter, 69 N. C. 140; Joyner v. Roberts, 112 N. C. Ill, 16 S. E. 917, but see Washburn v. Payne, 2 Blackford, 216, contra, inserted at ch. 12, post. In such actions the judgment is for the penalty of the bond, the judgment to be discharged by the payment of the dam- ages ascertained. Clark v. Goodwin, 1 Blackford, at p. 75, inserted, ante, in this section. Darden v. Blount, 126 N. C. 247, 35 S. E. 479. For forms of Declarations in Debt on bonds in which the state is ob- ligee — actions of "State ex rel." — and for authorities that, in North Car- olina prior to the adoption of the Code practice, the appropriate remedy tor a breach of such bonds was Debt, see Eaton's Forms, pp. 120-127. See "Officers," Century Dig. § 243; Decennial and Am. Dig. Key No. Series § 140. WORTH V. COX, 89 N. C. 44, 47-50. 1883. Summary Remedy on Official Bonds. [Summary proceeding, pursuant to a statute, against a sheriff and the sureties on his official bond. The judgment was entered by the clerk of the superior court without any notice to the defendants. An appeal being refused by the clerk, the defendants carried the case to the superior court by a petition for certiorari. The plaintiff demurred to the petition. Demurrer sustained, and judgment against defendants dismissing their petition, from which they appealed. Affirmed.] Smith, C. J. . . We proceed to examine the validity of the defenses set up in behalf of the sureties who appeal. 1. The regularity and efficacy of the summary judgment ren- dered without previous actual notice. In looking into the legisla- tion which introduced this summary process against public agents, we find that in 1793 an act was passed authorizing the attorney- general, on motion, to take judgment against receivers having public moneys in their hands and failing to pay over, and that their own delinquencies should be sufficient notice of the motion therefor. The compatibility of the enactment with the constitu- tion was brought in question, in an anonymous case reported in Sec. 2.] RIGHTS GROWING OUT OP CONTRACT. 647 1 Haywood, 20 (Battle, Ed. 38), the very next year, and elabor- ately argued before Judges Williams, Ashe, and Maeay, by the attorney-general, Haywood. The former, who first heard the motion, adhered to the opinion he then expressed, that the act was repugnant to the constitution ; while the other judges granted the motion. Judge Ashe remarking "that while he had considerable doubts. Judge ]\Iacay was so clear in his opinion that the judgment might be taken, and had given such strong reasons, that his own objections had been vanquished. ' ' The same summary remedy, given against delinquent sheriffs to the counties by the act of 1808, came before the court in the case of Gates v. Darden, 5 N. C. 500, and Hall, J., delivering the opinion, sustains the policy of such legislation, and says that "it docs not alter the rights of the sheriff," but only "the mode of proceeding against him, and that the legislature had the right to do this." Such acts, in his own words, "are beneficial, and should be liberally construed." In this case the judgment was rendered after the sheriff had gone out of office. A similar law to that under which the present proceeding was authorized, so far as we know, has been in uninterrupted force and acted on since the well-considered conclusion, in the anonymous case first cited, was announced; nor does the consistency of this summary and eificient remedy against delinquent collectors of public money, with the provisions of the organic law, seem to have been drawn in question since, unless in Prairie v. Jenkins, 75 N. C. 545, wherein Rodman, J., thus disposes of the two objec- tions made for the appellant: "1. The first ground on which the plaintiffs put their claim to relief is, that the judgment was taken before the clerk of the superior court and not before the judge in term time. This objection to the judgment is answered by the act of 1872-73 (Bat. Rev. ch. 102, s. 38), which expressly directs the proceeding complained of. 2. That the judgment was taken without notice to them. This also is directed by the act cited." This summary mode of enforcing the collection of taxes may be necessary in carrying on the operations of government, which would be often seriously interfered with if the state were forced to pursue the ordinary action upon the bond and subject its re- covery to the delays incident thereto, and with an unlimited right of appeal on the part of the delinquent and his sureties. The of- fice is accepted and the bond given under the known conditions of -the law that permits this direct and expeditious remedy in ease of default, and these may be said to enter as elements into the contract itself. But it is enough to say that if any law can be deemed settled and not longer to admit of controversy, the prac- tice under this, or a similar enactment for near a century past, has established its validity. It is suggested in argument for the appellants that the present constitution, essentially different from its predecessor, delegates to the general assembly all the power it possesses, and is not a mere limitation upon general legislative power, and hence there is no 648 EIGHTS GROWING OUT OF CONTRACT. [Ck. S. warrant for the enactment. We do not see any material difference between them in this respect, in their declaration of personal rights and immunities, which the act may be supposed to invade ; and as it is a part of the machinery for the collection of public taxes and their payment into the treasury, the act, as incident thereto, is necessarily involved in the power to levy and collect taxes for the support of the government. . . . Affirmed. To like effect, see Murray's Lessee v. Hoboken L. & I. Co., 18 Howard (U. S.) 272. See "Constitutional Law," Century Dig. § 948; Decennial and Am. Dig. Key No. Series § 306. Sec. 3. Action op Assumpsit. (a) There Musi Be a Contract, Either Express or Implied. BARTHOLOMEW v. JACKSON, 20 Johnson (N. Y.) 28. 1822. Gratuitous Service. Services Without Request, or Promise of Remunera- tion. [Jackson sued Bartholomew in assumpsit, before a justice, for work and labor done. Plea, non assumpsit. Bartholomew had a stack of wheat in Jackson's field, and Jackson sent him word to remove it by a certain time so that he could burn the stubble. As it was not removed, Jackson set fire to the stubble and then removed the wheat to keep it from burning. He sued in this action for the value of the services of himself and his servants in saving the wheat. Bartholomew had not re- quested him to move the wheat, nor promised to pay him for the work. Verdict and judgment for fifty cents against Bartholomew, who carried the case to the supreme court by writ of certiorari. Reversed.] Platt, J. I should be very glad to affirm this judgment; for though the plaintiff was not legally entitled to sue for damages, yet to bring a certiorari on such a judgment was most unworthy. The plaintiff performed the service without the privity or re- quest of the defendant, and there was, in fact, no promise express or implied. If a man humanely bestows his labor, and even risks his life, in voluntarily aiding to preserve his neighbor's house from destruction by fire, the law considers the service rendered as gratuitous, and it, therefore, forms no ground of action. The judgment must be reversed. For a review of the law as to when a contract will or will not be im- plied by law, see Force v. Haines, 17 N. J. L. 385; Woods v. Ayers, 39 Mich, at p. 351; Haywood v. Long, 27 N. C. 438; Jones v. Allen, Ibid. 473; University v. McNair, 37 N. C. 605; Prince v. McRae, 84 N. C. 674; Ev- eritt V. Walker, 109 N. C. 129, 13 S. E. 860; Richardson v. Strong, 35. N. C. at p. 108; Mordecai's L. L. 107-114; Mcintosh Cont. 8-19. See "Work and Labor," Century Dig. § 2, Decennial and Am. Dig. Key No. Series § 2. THOMAS V. SHOOTING CLUB, 121 N. C. 238, 28 S. E. 293. 1897. Where There Was No Intention to Charge. [Action for services rendered and accepted. Verdict and judgment against defendant, who appealed. Affirmed. The facts appear in the be- ginning of the opinion.] Sec. 3 a.] rights growing out op contract. 649 Faircloth, C. J. This action is brought to recover for serv- ices rendered in pi'ocuring hunting ground leases at the instance of defendant, which were accepted and received by the defendant. The plaintiff testified that when he got up the leases he did not expect to charge for the work, if they should pay balance on his house, which has been paid, and should pay him to take charge of their business at lucrative wages. The defendant's president tes- tified that : ' ' The consideration for getting up the leases was that we were to buy his property, and make him steward of the club at a salary. This was not a contract. It was our intention. . . Did not employ him as steward because we had a falling out about the house. ... I told him to get up the leases before we bought the house. ' ' So that there was no contract as to the leases, because the construction of a contract does not depend upon what either party expected, but upon what both agreed. Brunhild v. Freeman, 77 N. C. 128. If A. agrees to render services to B., and it is agreed by both that the services are gratuitous, and not to be charged for, then A. cannot recover. If A. renders services to B., and the work is accepted, the law implies a promise by B. to pay the value of the work. This is too familiar to need citation of authority. There was evidence as to the value of the services and the house, and the jury rendered a verdict in favor of the plaintiff for $160. In apt time, the defendant asked the court to instruct the jury that if the plaintiff, when he got up the leases, expected to make no charge, but expected remuneration after- wards by employment from the defendant, he could not recover for getting up the leases. This prayer was refused, but in lieu thereof his honor charged that : " If Thomas did not intend at the time to charge for getting up the leases, and this was known to the defendant, then he could not charge and recover for the same; but, if it was not known to the defendant that Thomas did not in- tend to charge, then Thomas could afterwards sue for and re- cover for his services in getting up the leases. (Exception.)" We see nothing prejudicial to the defendant in the charge as given, which included, in substance, the defendant's prayer, or so much thereof as he was entitled to. "When the law implies a promise to pay for work done and accepted, and there is no agreed price, the laborer may recover the reasonable value of his services, unless there be some agreement or understanding that nothing is to be paid. A physician makes no charge for professional serv- ices on his books, and payment is resisted on the ground that the services were intended to be gratuitous, and the jury find that the services were rendered without any agreement to pay a definite sum. Held, that the law implies a promise to pay what they were reasonably worth. Prince v. McRae, 84 N. C. 674. Here, as the implied promise is not met by any agreement that there should be nothing paid, the plaintiff is entitled to recover. Affirmed. That one cannot do an act of charity and afterwards charge for it, see University v. McNair, 37 N. C. 605; Everitt v. Walker, 109 N. C. 139, 13 S. E. 860. For the right of recovery for services when there is no in- 650 RIGHTS GROWING OUT OF CONTRACT. [Ch. 8. tentlon to charge, see Williams v. Barnes, 14 N. C. 348; Hudson v. Lutz, 50 N. C. 217; Hauser v. Sain, 74 N. C. 552; Miller v. Lash, 85 N. C. 51; Dodson V. McAdams, 96 N. C. 149, 2 S. E. 453; Young v. Herman, 97 N. C. 280, 1 S. E, 792; Callahan v. Wood, 118 N. C. 752, 24 S. E. 542; Avitt v. Smith, 120 N. C. 392, 27 S. E. 91; Hicks v. Barnes, 132 N. C. 146, 43 S. E. 604; Stallings v. Ellis, 136 N. C. 69, 48 S. E. 548; Dunn v, Currie, 141 N. C. 123, 53 S. E. 533; Winkler v. Killian, 141 N. C. 575, 54 S. E. 540; Henderson v. McLain, 146 N. C. 329, 59 S. E. 873; Mordecai's L. L. 107- 114; 15 Am. & Eng. Enc. L. 1083; 21 lb. 1061; 2' Page Cont. §§ 778-784; 9 Cyc. 273-275; Mcintosh Cont. 12-16. It will be seen from the above cases that there has been a good deal of conflict and confusion on this point. See "Work and Labor," Century Dig. §§ 8-10; Decennial and Am. Dig. Key No. Series § 5. DAY V. CATON, 119 Mass. 513. 1876. When a Contract to Pay for Services May Be Inferred from tlie Conduct of the One Benefited Thereby. [Action ex contractu to recover the value of one half of a party wall erected by the plaintiff with the knowledge, and without the objection, of the defendant, the defendant knowing that the plaintiff expected to be paid for his services. Verdict against defendant, who alleged exceptions. Exceptions overruled. The defendant requested the judge to charge that there could be no recovery in the absence of an express contract on his part; and that if the defendant knew the work was going on, he would not be rendered liable by such knowledge, and by his silence and subsequent use of the wall. The judge refused to so instruct the jury, but did charge that while the building of the wall by the plaintiif with defendant's knowl- edge and defendant's using it, would not, per se, render the defendant liable to pay for it, still a promise to pay might be inferred from the de- fendant's conduct; and that if defendant knew or had reason to know that the plaintiff was doing the work and expected to be paid for it, and yet the defendant allowed him to proceed without objection, then the jury might infer that the defendant promised to pay the plaintiff for his work.] Devems, J. The ruling that a promise to pay for the wall would not be implied from the fact that the plaintiff, with the defend- ant's knowledge, built the wall, and that the defendant used it, was substantially in accordance with the request of the defendant, and is conceded to have been correct. Chit. Cont. (lltli Am. ed.) 86; Wells V. Bannister, 4 Mass. 514; Knowlton v. Plantation No. 4, 14 jMaine, 20; Davis v. School District in Bradford, 24 Maine, 349. The defendant contends, however, that the presiding ,iudge incorrectly ruled that such promise might be inferred from the fact that the plaintiff undertook and completed the building of the wall with the expectation that the defendant would pay him for it, the defendant having reason to know that the plaintiff was acting with that expectation, and allowed him thus to act with- out objection. The fact that the plaintitf expected to be paid for the work would certainly not be sufficient of itself to establish the existence of a contract, when the question between the parties was whether one was made. Taft v. Dickinson, 6 Allen, 553. It must be shown that, in some manner, the party sought to be charged assented to Sec. 3 a.] RIGHTS GROWING OUT OF CONTRACT. 651 it. If a party, however, voluntarily accepts and avails himself of valuable services rendered for his benefit, when he has the option whether to accept or reject them, even if there is no distinct proof that they were rendered by his authority or request, a promise to pay for them may be inferred. His knowledge that they were valuable, and his exercise of his option to avail himself of them, justify this inference. Abbot v. Hermon, 7 Greenl. 118 ; Ilayden V. Madison, 7 Greenl. 76. And when one stands by in silence and sees valuable services rendered iipon his real estate by the erec- tion of a structure (of which he must necessarily avail himself afterwards in his proper use thereof), such silence, accompanied with the knowledge on his part that the party rendering the serv- ices expects payment therefor, may fairly be treated as evidence of an acceptance of it, and as tending to show an agreement to pay for it. The maxim, qui tacet consentire videtur, is to be construed in- deed as applying only to those cases where the circumstances are such that a party is fairly called upon either to deny or admit his liability. But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak. Lamb v. Bunce, 4 M. & S. 275 ; Conner V. Hackley, 2 Met. 613. Preston v. American Linen Co., 119 Mass. 400. If a person saw day after day a laborer at work m his field doing services which must of necessity enure to his ben- efit, knowing that the laborer, expected pay for his work, when it was perfectly easy to notify him if his services were not wanted, even if a request were not expressly proved, such a request, either previous to or contemporaneous with the performance of the serv- ices, might fairly be inferred. But if the fact was merely brought to his attention upon a single occasion and casually, if he had little opportunity to notify the other that he did not desire the work and should not pay for it, or could only do so at the expense of much time and trouble, the same inference might not be made. The circumstances of each case would necessarily determine whether silence with a knowledge that another was doing valu- able work for his benefit, and with the expectation of payment, indicated that consent which would give rise to the inference of a contract. The ciuestion would be one for the jury, and to them it was properly submitted in the case before us by the presiding judge. Exceptions overruled. See also Bailey v. Rutjes, 86 N. C. 517; Blount v. Guthrie, 99 N. C. 93, 5 S. E. 890. See "Party Walls," Century Dig. § 60; Decennial and Am. Dig. Key No. Series § 10. PATTON V. BRITTAIN, 32 N. C. 8. 1848. Using Goods Not Ordered. [Assumpsit for hides delivered to the defendant upon the order of his agent, but contrary to the agent's instructions from the defendant. De- fendant had knowledge of his agent's disobedience of orders before he ■652 RIGHTS GROWING OUT OF CONTRACT. [Ch. 8. had received tlie hides and settled with his agent. Defendant kept the hides but refused to pay for them, because he had given his agent the money with which to pay cash for them, which money the agent mis- applied and bought the hides on defendant's credit. "Verdict and judg- ment against the defendant, and he appealed. Affirmed.] Battle, J. The question presented for our determination in this case is one of some practical importance, but not of much difficulty. There is no doubt that the defendant was not bound by the contract for the purchase of the hides made by his agent, because the agent had exceeded his authority in purchasing upon credit instead of paying cash, as he was expressly directed. This is fully established by the authorities referred to and relied upon hj the defendant's counsel. 1 Chit. PI. 40; Com. on Cont. 223. The principal, then, had a perfect right to repudiate the contract and refuse to receive the articles, but not having done so, it is equally clear that, by receiving the hides and appropriating them to his own use, after notice from the plaintiff that they had been purchased for him and upon his credit, he ratified the contract made on his behalf, and became bound to pay for them. And this result would have been the same whether Bates acted contrary to his authority, exceeded it, or had none at all. It is the simple case of the goods of one man coming to the use of another, which he knows are not intended as a gift, but are sent to him upon the ex- pectation that he will receive them and pay for them. He may refuse them if they have been sent without his request ; but if he receive them, he must pay for them. But it is contended that the defendant received the goods before notice that they were sent upon his credit, at Hamberg, by the delivery to the commission merchants, or at least to the wagoner, who carried them to his place of residence in Henderson county. That cannot be so, for there is no evidence that the commission merchants or the wagoner were his special agents to receive the goods for him. There was, therefore, no delivery of them to the defendant until they were carried to him in Henderson. Until that time they were merely in transitu, in the hands of common carriers, and he had the op- tion to receive them or reject them. Having done the former, it is but common justice that he shovild pay for them. The dis- honesty of his agent in embezzling his money must fall upon him- self and not upon an innocent person, M'^ho never trusted the agent. In coming to the conclusion that the defendant is responsible for the price of the hides, we have not been at all influenced by the consideration that he had notice that he was looked to for payment before he had the settlement with his agent. That circumstance did not in any manner affect the plaintiff's right to recover, pro- vided the notice that credit was given to him reached his hands before the goods were received by him, because the plaintiff had done nothing to change the relation between him and his agent before that time. The judgment must be affirmed. See "Principal and Agent," Century Dig. § 649; Decennial and Am. Dig. Key No. Series § 171. Sec. 3 a.] rights growing out op contract. 653 RICHARDSON v. STRONG, 35 N. C. 106. 1851. Services Rendered to One Who is Insensible, or Wholly Incapable of Talcing Care of Himself at the Time. [Assumpsit for services in caring for the defendant, at the request of his relatives, while defendant was insane — so much so as to attempt to injure himself and destroy bis property. Verdict and judgment against defendant, and he appealed. Affirmed. Defendant pleaded that he was insane when the services were rendered, and also that they were unnecessary. The judge charged that, if de- fendant was in the condition above stated, the services were necessary, and if necessary, the defendant was liable.] RuFFiN, C. J. The contracts of a lunatic are not all absolutely void ; but it is held that contracts fairly made vpith them for nec- essaries or things suitable to their condition or habits of life, are to be sustained. The leading case on the subject in England is that of Baxter v. Earl of Portsmouth, 5 B. & C. 107 ; and in Tally V. Tally, 22 N. C. 385, the same opinion was expressed by this court. There is, therefore, no absurdity in the ease of lunatics more than in that of infants in implying a reciuest to one render- ing necessary services or supplying necessary articles, and imply- ing also a promise to pay for them. Indeed, with whatever pro- priety the ancient maxim that no one ought to be allowed to stul- tify himself is denied in modern law, its application in a case of this kind seems to be entirely just. The urgency of the case de- mands instant help, and leaves no opportunity for a previous appli- cation to a court having the ordering of the estates to tix an allow- ance ; and in such an instance as this, in which, as far as is seen, there was a recovery before a commission issued, there could be no subsequent allowance, however assiduous and effective the atten- tions to the party might have been. Therefore, there is no middle ground between leaving an unhappy person thus afflicted desti- tute of those seirices and things indispensable to his proper re- straint and recovery, or however rich, dependent for them on gratuitous benevolence, on the one hand; or on the other of im- plying a promise to pay for them what they may reasonably be worth. It is as if a physician administered to a man deprived of his senses by a dangerous blow, when the loss of life might result from delay. He would certainly be bound to make reasonable remuneration, though incapable at the time of making an actual request. The reason extends to medical services to a madman, and to those of a nurse for him, or of a guard to protect him from a propensity to destroy himself, or his property. In the case before the court the plaintiff acted at the instance of the de- fendant 's medical adviser and his nearest friend and relative, not insisting, however disagreeable the duty, on any stipulation for high wages, but content with a quantum meruit. His conduct was, therefore, as fair as it could be. Upon the other point there is no doubt. "What the plaintiff did certainly falls within the class of necessaries as defined in the law. Judgment affinned. ■654 RfGHTS GROWING OUT OP CONTRACT. [67(. 8. See Kansas v. Huff, 90 Pac. 279, 12 L. R. A. (N. S.) 1090, and note; und in this connection see 4 lb. at p. 63. See "Insane Persons," Century Dig. §§ 128, 129; Decennial and Am. Dig. Key No. Series § 75. CRANMER V. GRAHAM, 1 Blacltf. 406. 1825. Express Contract and Quantum Meruit or Quantum Talebat. [Cranmer brought assumpsit against Graham and declared in two counts: 1. On an express contract for twelve months' services at $9.25 per month; 2. General indebitatus assumpsit for work and labor. The evidence disclosed an express contract by which the defendant hired the plaintiff for ten months for $92.50. — an entire contract. The first count Bet up an entire express contract for twelve rrvontlis at $9.25 per month, while the proof was that of an entire contract for ten months at $92.o0. Judgment against the plaintiff, Cranmer, who carried the case to the supreme court by writ of error. Affirmed. The case was heard below on a demurrer to plaintiff's evidence, the substance of which is given above.] HoLMAN, J. ... So far as the testimony proves anything, it proves a hiring for ten months for $92.50, a contract very dif- ferent from a hiring at $9.25 per month. In McMillan v. Vander- lip, 12 Johns. 165, a hiring to spin for tvi^elve months, at three cents per run, was considered as an entire contract for twelve months, and the plaintiff was not permitted to recover by the run, after spinning a part of the time. The principle on which that case was decided is applicable, in its utmost strength, to the case before us. Here is a hiring to ordinary labor on a farm for ten months, commencing in the winter season, for the sum of $92.50; and if the plaintiff is permitted to recover, as for a hiring at $9.25 per month, he would have the same right to recover for a part of the time as for the whole. But it is well known that the labor of a man on a farm is far more valuable in the spring and summer than in the winter months. And it would be contrary to every principle of justice, to permit a man under such a contract to labor through the winter months, and recover of his employer for that time as for monthly wages, when in all probability the em- ployer would not have hired him during those months, but in con- sideration of his services the balance of the term. The contract proved is certainly very different from the contract set forth in Ihe first count of the declaration ; and the necessity of a correspond- ence, in every material part, between the allegations and the proof, cannot now be disputed. See Sebastian v. Thompkins, 1 Marsh, 63; Tharpe v. White, 13 Johns. 53; and the various au- thorities cited in 1 Esp. N. P. 263. It is equally clear, and equally well settled, that, where there is a special agreement, it must be declared on ; and cannot be given in evidence under general counts. This rule prevails when the special contract remains in full force ; but, where the contract has been rescinded by agreement of the parties, or has been performed in a manner somewhat different from the terms of the contract. iS'cC. 3 a.] RIGHTS GROWING OUT OF CONTRACT. 655 or the performance has been prevented by the opposite party, a recovery may be had on a general count. This doctrine runs through a variety of cases. See Linningdale v. Livingston, 10 Johns. 36 ; Raymond v. Bearnard, 12 Johns. 274 ; Jennings v. Camp, 13 Johns. 94; 1 Esp. N. P. 249; 2 Phil. Ev. 83, and the various authorities cited in the text and note. Here the special agreement was still open and in full force; and a recovery, if to be had at all, must be had under that agreement, and not on a general indebitatus assumpsit. Judgment affirmed. "We take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not un- der seal, where the contract has been completely executed [performed by the plaintiff]; and that it is not necessary, in such case, to declare upon the special agreement." Bank of Columbia v. Patterson, 7 Cranch, 303; see other cases cited in a note to the principal case, and in 1 Rose's Notes, 522. In North Carolina a recovery may be had on a quantum meruit although the complaint sets up a special contract only, if the plaintiff prove the performance of services, their acceptance and value, and fail to prove a special contract; a,nd this he can do without amending his complaint. Stokes v. Taylor, 104 N. C. 394, headnote 3, 10 S. B. 566. See further on this subject of recovery on a quantum meruit or valebat, when there is an express contract, Chamblee v. Baker, 95 N. C. at p. 100, in- serted at ch. 6, § 3, a, ante; Hoagland v. Moore, 2 Blackford, at p. 170; Byerly v. Kepley, 46 N. C. 35; Madden v. Porterfield, 53 N. C. 166; and cases and authorities cited in Stokes v. Taylor, supra; Mcintosh Cont. 540-544. The principal case is said to be overruled by several subse- quent cases in the Indiana reports. See notes to the principal case and note at p. 70 of 3 Indiana. See the next succeeding case in this section. See "Work and Labor," Century Dig. §§ 23-33; Decennial and Am. Dig. Key No. Series §§ 8-14; "Assumpsit, Action of," Century Dig. § 15; Decennial and Am. Dig. Key No. Series § 5. KERSTETTER v. RAYMOND, 10 Ind. 199, 202-205. 1858. Express Contract and Quantum Meruit or Quantum Talehat. I Raymond sued Kerstetter for the value of goods sold and delivered as per an account filed with his complaint. Verdict and judgment against Kerstetter, and he appealed. Reversed. After the evidence was closed and the case argued to the jury, Ray- mond was permitted to amend his complaint by adding a paragraph setting up a written contract and giving its terms. The defendant ob- jected. No proof of the express contract was offered, but such a con- tract was alleged in the amendment to the complaint. Plaintiff made no attempt to show what were the terms of the express written contract, or that he had complied with its terms, etc. The further tacts concern- ing the proof appear in the opinion. The discussions as to the propriety of allowing the amendment, and of the Indiana statute governing the tiling of original contracts, etc., upon which an action is based, are omitted.] Hanna, J. . . The new pleading having been improperly tiled, the next question is as to its effect. The parties appear to have acted, in this" case, upon the presumption that it is obliga- tory upon one who resorts to a suit, to seek his remedy upon the written contract or agreement, where one exists, in reference to 656 RIGHTS GROWING OUT OF CONTRACT. [CJt. 8. the subject-matter embraced in the controversy. This is evident from the fact that, after the evidence disclosed the existence of a written contract, the plaintiff sought and obtained leave to file the additional paragraph to his complaint, and from the further fact that the defendant asked certain instructions to the jury, directed to that point. Should the written contract have been made the foundation of the suit ? A copy of it is not given. The paragraph professes to set forth its terms and stipulations. No proof was given as to its terms, etc. There could be no doubt, from the evidence, about the plaintiff's having parted with his property on some kind of contract, either express or implied, with defendant. The evidence is conflicting as to whether the defend- ant was acting for himself or for others, in making the purchase. It was a question for the jury. Several instances are given in which general assumpsit might be brought, under the old fprm of pleading, where there has been a special contract — the following among others: 1. ""Where the whole of such contract has been executed on the part of the plain- tiff, and the time of payment on the other side is past, a suit may be brought on the special contract, or a general assumpsit may be maintained ; and in the last case, the measure of damages will be the rate of recompense fixed by the special contract." 2 Smith's Leading Cases, 41; Bank of Columbia v. Patterson, 7 Craneh, 299, 2 Curtis, 540 ; 1 Bac. Abr. 380 ; Chesapeake and Ohio Canal Co. V. Knapp, 9 Pet. 541, 11 Curtis, 476. 2. "If there has been a special contract which has been altered or deviated from in particulars, by common consent, general as- sumpsit will lie," etc. 2 Smith's Leading Cases, 42; Dubois v. The Delaware and Hudson Canal Co., 4 "Wend. 285; Jones v. "Woodbury, 11 B. Mon. 169. 3. "If there has been a special contract, and the plaintiff has performed a part of it according to its terms, and been prevented by the act or consent of the defendant, or by the act of the law, from performing the residue, he may in general assumpsit recover compensation for the work actually performed, and the defendant cannot set up the special contract to defeat him." 2 Smith's Leading Cases, 43, and cases cited ; Scobey v. Ross, 5 Ind. 446. 4. Under the decisions in this state, the following principle is also established, to-wit : ' ' That when one party to a special entire contract has not complied with its terms, but professing to act under it, has done for, or delivered to, the other party something of value to him which he has accepted," etc., and the time for performance of the contract is past, an implied promise arises to the extent of the value, etc. Lomax v. Bailey, 7 Blackf. 603; 3 Ind. 73. ... If the defendant, in the case at bar, had desired to avail himself of any supposed benefit to him, arising out of the written contract, either to defeat the action, or to fix the measure of damages, he could have done so by pleading it in answer and producing it in evidence upon the trial. The mere filing the additional para- Src. 3 a.] rights growing out op contract. 657 graph, without receiving evidence to sustain it, could not have produced any injury to the defendant. The last error assigned— that the verdict is not sustained by the evidence— we think is well taken. In the absence of evidence that the parties had entered into a special written contract con- cerning the matters in controversy, the plaintiff had, by the testi- mony introduced, so far made out a case as to leave it a question for the .jury whether he had a right to recover ; but after there was evidence given that such written contract existed, the plain- tiff did not attempt to show what its stipulations were, or that he had complied upon his part, or been prevented from comply- ing; nor did he show that, for any reason, he was in a condition to disregard the written contract, and recover for the property de- livered ; nor was it given in evidence or its contents proved by the defendant. It is insisted that, evidence upon this point should come from the defendant under these circumstances. We think not. Suppose it was true that the plaintiff had complied with all the stipulations upon his part ; still he would have to produce the contract to show that the day of payment had arrived, and that the defendant was in default ; so if the special contract had been departed from by mutual consent, or if the plaintiff had been prevented from performing, etc., or if the time for the perform- ance of the contract was past and it was no longer open. There was no evidence upon any of these points. Epperly v. Bailey, 3 Ind. 73; Wheatly v. Miscal, 5 Ind. 142.; Lomax v. Bailey, 7 Blackf. 599. A late writer on evidence holds the following lan- guage: "Where in a suit for the price of work and labor per- formed, it appears that work was commenced under an agreement in writing, the agreement must be produced; and even if the claim be for extra work, the plaintiff must still produce the writ- ten agreement ; for it may furnish evidence, not only that the work was over and beyond the original contract, but also of the rate at which it was to be paid for." 1 Greenl. s. 87. The judg- ment is reversed with costs. See "Assumpsit, Action of," Century Dig. § 153; Decennial and Am. Dig. Key No. Series § 25; "Contracts," Century Dig. §§ 1726, 1754, 1772; Decennial and Am. Dig. Key No. Series §§ 346, 348. WEBB V. CHAMBERS, 25 N. C. 374. 1843. Assumpsit on Account Stated. [Assumpsit to recover the amount of a store account. Verdict and judgment against the defendant, and he appealed. Affirmed. There was evidence that plaintiff and defendant had a conversation about the amount due to plaintiff by the defendant on a store account; that the defendant had the account in his hands during such conversa- tion, but whether or not he read It over, did not appear; that the de- fendant promised, during this conversation, to close the account by his bond. The judge charged that upon this evidence, if believed by them, the jury could find for the plaintiff.] Remedies — 42. 658 RIGHTS GROWING OUT OP CONTRACT. [C/(. <9. RuPFiN, C. J. There can be no doubt of the correctness of the opinion given to the jury. It is the ordinary evidence of the jus- tice of a merchant's account, when he renders it to his customer and the latter keeps it without objection to any of its items. Without a denial of it in toto or of some part of it, the jury may infer an admission of its correctness and a promise to pay the balance. Upon that part of the case alone, therefore, the court might have left it to the jury on both points, that is, as proof of the delivery of the articles and of a mere promise to pay. But in addition to those inferences, here the defendant, with the ac- count in his hand, and after perusing it or opportunity of perus- ing it, expressly promised to settle the account and pay it. A promise could not be more direct or precise, for there was noth- ing left to imcertainty, as the account fixed the debt, which the defendant agreed to pay. Judgment aifirmed. See ch. 4, § 2, (c). See to the same effect as the principal case, Daniel V. Whitfield, 44 N. C. at p. 297; Hawkins v. Long, 74 N. C. 781; 23 L. R. A. (N. S.) 478. In an action on an account stated it is not necessary to state the items constituting the debt. Dunn v. Johnson, 115 N. C. at p. 259, 20 S. E. 390, citing Selwyn's Nisi Prius, 68. See "Account Stated," Century Dig. §§ 30-40; Decennial and Am. Dig. Key No. Series § 6. JONES V. HOAR, 5 Pickering, 285. 1827. Waiving the Tort and Suing in Assumpsit. [Assumpsit tor goods sold and delivered and for money had and re- ceived. The basis of the action was, that the defendant had entered upon the plaintiff's land and had cut and carried off a quantity of timber. The defendant insisted, that upon these facts the plaintiff could not maintain this action — that he could not waive the tort and sue in assump- sit, unless the defendant had sold the timber, and this was not shown. Judgment against the plaintiff, and he appealed. Affirmed.] Parker, C. J. The plaintiff declares in assumpsit, and one count is for goods sold and delivered. By the agreement it ap- pears, that the only ground for supporting this count is, that the defendant cut and took away certain trees from land claimed by the plaintiff, and, for the purpose of the argument, actually owned by him. The proper action would undoubtedly be tres- pass for the injury to the land, or trover for the trees. But the plaintiff contends that he has a right to waive the tort, and charge the defendant mth the trees as sold to him. Upon examination of the authorities cited, which are well summed up and com- mented upon by Strong, J., in the opinion of the court of com- mon pleas, we are satisfied that the plaintiff cannot maintain this position. There is no contract express or implied between the parties, and therefore an action ex contractu will not lie. The whole extent of the doctrine, as gathered from the books, seems to be, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or Sec. 3 a,.] rights growing out op contract. 659 trover, may, if the wrong-doer sell the goods and receive the money, waive the tort, afSrrn the sale, and have an action for money had and received for the proceeds. No case can be shown where assumpsit as for goods sold lay in such ease, except it be against the executor of the wrong-doer, the tort being extin- guished by the death, and no other remedy but assumpsit against the executor remaining. Such was the case of Hambly v. Trott, Cowp. 371, referred to in Judge Strong's opinion. The opinion of Judge Strong referred to in the principal case is printed in the second edition of Picliering's Reports, 1864, and is a very instruc- tive exposition of the point involved. In it many English cases are cited and distinguished. . In Bullinger v. Marshall, 70 N. C. 520, inserted at ch. 4, sec. 1, it is said: "There are cases where a party is allowed to waive the tort and sue in contract, as if one takes my horse and sells it and receives the money, I may waive the tort and sue for money had and received to my use, . . . but if the money he not received, my rem- edy is for the tort." This case is approved In Timber & Land Co. v. Brooks, 109 N. C. 698, 14 S. E. 315, which, in turn, is approved in Man- ning V. Fountain, 147 N. C. 18, 60 S. E. 645, inserted in subsection b, post. See the next succeeding case for a more liberal doctrine than that announced in the principal case. For a full discussion of both lines of authority, see 4 Cyc. 332-334; Page on Cont. sees. 840-843; Clark on Cont. pp. 537, 549. In Glasscock v. Hazell, 109 N. C. 145, 13 S. E. 789, it is held that to sustain assumpsit in such cases there must be proof not only that the defendant had sold the goods but of the amount he received therefor. See "Action," Century Dig. §§ 196-215; Decennial and Am. Dig. Key No. Series § 28; "Assumpsit, Action of," Century Dig. §§ 42-54. COOPER v. HBLSABECK, 5 Blackford, 14. 1838. Same Point as in Preceding Case. [Action of assumpsit for goods sold and delivered. The proof was, that the defendant took the plaintiff's wagon and converted it to his own use; but there was no proof that the defendant had sold the wagon. Judgment against the plaintiff, and he appealed. Reversed.] Sullivan, J. . . . The only question in this case is, whether the action of assumpsit for goods sold and delivered can be maintained. Where there is no contract of sale, assumpsit is not generally the appropriate form -of remedy, yet it sometimes lies for the value of goods obtained tortiously. There are many cases re- ported, in which it has been held that a plaintiff may waive a tort, and sue for goods sold, etc. In the case of Hill v. Perrott, 3 Taunt. 274, where the defendant had by fraud procured the plaintiff to sell to an insolvent person a quantity of goods, and which the defendant had gotten into his own possession, the court held that the law would imply a contract to pay for the goods from the circumstance of their having been the plaintiff's prop- erty, and having come to the defendant's possession unaccounted for; and he could not be permitted to account for the possession by setting up the sale to the insolvent person which he himself 660 RIGHTS GROWING OXTT OF CONTRACT. [C'h. 8. had procured by fraud, because no man may take advantage of his own fraud ; therefore indebitatus assumpsit lay for the goods. In Lee v. Shore et al., 1 B. & C. 94, which was an action for goods sold and delivered, the plaintiff proved the possession of the goods by himself and their removal by the defendants, but it appeared that the goods consisted of spar lying on the lands of one Hurd, and that the plaintiff claimed under Hurd by a written agreement not produced. It was held that the plaintiff could not recover, because he claimed to hold the land on which the goods lay by virtue of a written contract which was not given in evidence. Abbott, C. J. said: "Where the owner of property which has been taken away by another waives the tort, and elects to bring an action of assumpsit for the value, it is incumbent upon him to show a clear and indisputable right to the property." The only difficulty in the way of the plaintiff's recovery was, that he did not produce on the trial the proper evidence of his right to the property, and which would have explained those acts of ownership he had exercised over it. In another ease, the plaintiff contracted to underpin the defend- ant's house with hewn stone, and the stone were furnished for that purpose by the plaintiff. The stone were not used for the purpose intended, but were left by the plaintiff near the defend- ant 's house imtil autumn, when the defendant built a dairy and put into it the same stone. There was no contract for the sale of the stone; on the contrary, it was proven that the plaintiff said they were taken without leave. The court held that the tort might be waived, and assumpsit supported for the price of the stone, al- though there was no contract. Hill v. Davis, 3 N. H. 384. In Lightly v. .Clouston, 1 Taunt. 112, where an apprentice was seduced from the service of his master, it was held that the tort might be waived and assumpsit maintained for the wages of the apprentice; and the court said that the defendant would not be permitted to say that he obtained the services of the apprentice not by contract but by fraud. Morton on Vendors, at page 245, says: "As the defendant can- not take advantage of his own vsrrong, the plaintiff may in general waive the tort, when the goods have come wrongfully into the de- fendant's possession, and sue for goods sold." Starkie, in his Treatise on Evidence, part 4, title "goods sold and delivered," says "the plaintiff may in this as in other cases waive a tort, and in some instances treat the defendant, who has fraudulently pos- sessed himself of the goods, as the purchaser." Prom the authorities above noticed, we think the plaintiff may recover in the present form of action. The facts in this ease are spread upon the record by a demurrer to the evidence. They fully sustain the plaintiff's case, and the judgment of the circuit court ought to have been for the plaintiff and not for the defend- ant. Judgment reversed with costs. See "Action," Century Dig. §§ 196-215; Decennial and Am. Dig. Key No. Series § 28; "Assumpsit, Action of," Century Dig. §§ 42-54. Sec. S 1).] EIGHTS GR(J\\'ING OUT OF CONTRACT. 661 (h) Money Had and lieccived. MOSES V. MACFERLAN, 2 Burrows, 1005, 1008, 1012. 1760. Basis and Gist of Assumpsit for Money Had and Received. [Moses indorsed some notes to Macferlan under an agreement that, while it should not so appear in the indorsements, Moses should in real- ity, as between him and Macferlan, occupy the position of indorser with- out recourse. By resorting to means not necessary to mention, Macfer- lan collected the amount of the notes from Moses on the strength of his indorsement. Thereupon Moses brought this action to recover back the amount thus improperly extorted from him. The action was based on the implied promise of Macferlan to return the money improperly col- lected from Moses, and not upon the express promise that Moses should incur no liability to Macferlan by indorsing the notes. Verdict against the defendant subject to the opinion of the court as to whether the plain- tiff could recover in this action of assumpsit for money had and received to his use. Defendant moved to nonsuit the plaintiff. Motion overruled and judgment against the defendant. Only extracts from the opinion — which was written on the motion to nonsuit — are here Inserted.] Lord Mansfield, C. J. There was no doubt at the trial, but that upon the merits the plaintiff was entitled to the money; and the jury accordingly found a verdict for the six pounds, subject to the opinion of the court upon this question, "Whether the money might be recovered by this form of action, or must be by an action upon the special agreement only." . This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which ex aequo et bono, the defendant ought to refund : it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the statute of limitations, or contracted during his infancy, or to the extent of principal and legal interest, upon an usurious contract, or for money fairly lost at play : because in all these eases, the de- fendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake, or upon a consideration which happens to fail ; or for money got through imposition (express or implied) ; or extor- tion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons un- der those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. Therefore we are all of us of opinion, that the plaintiff might bring this action to recover the six pounds which the de- fendant got and kept from him iniquitously. See "Money Received," Century Dig. § 1; Decennial and Am. Dig. Key No. Series § 1. 662 RIGHTS GROWING OUT OP CONTRACT. [CJl. 8. SERGEANT AND HARRIS v. STRYKER, 16 N. J. L. 464. 1838. Assumpsit for Money Had and Received. When the Action Will Lie and When .it Will Not Lie. Privity, Express or Implied. [Stryker sued Sergeant and Harris, before a justice of the peace, for money had and received by them to his use. The justice rendered judg- ment against the defendants, and they appealed to the court of common pleas, which again rendered judgment against them. They then carried the case to the supreme court by certiorari. Reversed. A sheriff offered a reward for the arrest of an escaped prisoner. Stryker arrested the man, but Sergeant and Harris, falsely representing to the sheriff that they had apprehended the prisoner, induced him to pay the reward to them. The payment was not made to them for Stryker, nor on his account, but it was paid to Sergeant and Harris because they claimed it as their own, and because the sheriff supposed, from their statements, that they were entitled to it. Stryker brought this action to recover the money from Sergeant and Harris, and the question is: Could Stryker recover, under the circumstances stated, for money had and re- ceived to his use?] HoRNBLOWER, C. J. . . . 'Whether the plaintiff, under the facts in this case, is entitled to recover in this action, is the ques- tion. That Stryker, upon the evidence in this ease, was alone en- titled to the reward, there cannot, I think, be a reasonable doubt; and if he had sued Sheriff Jones, nothing in my opinion could have prevented his recovery. He has thought proper, however, to pursue the money in the hands of the defendants, as money re- ceived by them to his use ; and whether he can recover, remains to be seen ; I fear he cannot. The action of assumpsit for money had and received is un- doubtedly a favored and highly beneficial one. It is justly com- pared to a bill in equity; because it lets in both parties, plaintiff and defendant, to all the grounds of complaint on the one side, and of excuse and allowance on the other, which are consistent with the principles of equity and good conscience — nevertheless, we must not extend it to cases, where a court of equity itself, if the plaintiff was at liberty to go there, would not entertain a bill and give the relief sought for. Straton v. Rastell, 2 T. E. 370. per BiTLLER, J. Broad and extensive as this action is, it has its limits, beyond which it ought not to go ; and the great difficulty is to prescribe those limits, and make them out by such specific and perceptible lines, as leaves the mind in no doubt or perplexity. To say that it lies to "recover back money which ought not to be kept" — "for money which, ex aequo et bono, the defendant ought to refund" — or "for money which the defendant, upon the cir- cumstances of the case, is obliged by the ties of natural justice and equity to refund," or "for money got through imposition," or "extortion." or "oppression." or "by mistake," or "by an undue advantage taken of the plaintiff's situation," is, after all, dealing in generalities which afford us no specific rule by which to test any particular case. Notwithstanding the universality of the expressions used in the books on this subject, there is aU'l Sec. 3 6.] RIGHTS GROWING OUT OF CONTRACT. 663 must be in truth and justice a limit to this action. It cannot be that every person having a legal demand and a right of action against a third person, is at liberty to abandon his suit against such person, and by a suit against me for money had and received, compel me to litigate with him and establish my right to money which I may have received from his debtor. . . . The defendants, instead of receiving the money as the money of the plaintiff, or for his use, claimed and received it as their own, and wholly deny the plaintiff's right to it. It will not do to rely upon the sweeping expressions used in many of the cases upon this subject. In Johnson v. Johnson, 3 Bos. & Pul. 169, Lord Alvanley says: "In the case of Moses v. McFerlan, some princi- ples were laid down, which are certainly too large — such as that, wherever one man has money which another ought to have, an action for money had and received may be maintained; or that wherever a man has an equitable claim, he has also a legal ac- tion." In short, there must he some privity existing between the parties, in relation to the money sought to be recovered in this action. This privity may be either express or implied. It is ex- press, where the defendant has received the money as agent or bailiff for the plaintiff, or where he consents or agrees to appro- priate money in his hands belonging to another, to the payment of the plaintiff, at the owner's request. But it can be implied only where the defendant has received money of the plwintiff, or money belonging to the plaintiff, by mistake, or fraud, or duress, or has come into possession of it mala fide, or on a consideration which has failed, or has tortiously converted the plaintiff's prop- erty into money. In other words, the money sought to be re- covered in this action upon an implied promise, must either be identically the money of the plaintiff, of which the defendant has improperly possessed himself; or the proceeds of some property, or issuing out of some fund or emoluments belonging to the plain- tiff; and I think every well considered case will be found to ar- range itself under one or the other of these heads. In Lamine v. Dorrell, 2 Ld. Raym. 1216, the action was by a rightful adminis- trator, to recover the proceeds of certain debentures which be- longed to the estate of the intestate, and which the defendant, or wrongful administrator, had sold. The case of Howard v. Wood, 2 Lev. 245, Sir T. Jones, 126, and many others of the same kind, were brought by a rightful officer to recover the fees of office that had been received by one who had held the office wrongfully ; and these cases, it will be perceived, are like those mentioned by Lord Mansfield, in Moses v. McFerlan, where the defendant has re- ceived money from third persons in opposition to the plaintiff's right, and which by law the defendant had authority to receive. But then it must be remembered, that the rightful officer had a right to those specific fees, and he could not recover them of the persons who had paid them to Lhe officer de facto; for the officer de facto, while he continued to be such, had a right to demand, and lawful authority to receive, the emoluments of office. 66i EIGHTS GROWING OUT OF CONTRACT. [Ch. 8. The ease of Mason v. Waite, 17 Mass. 560, was cited by the de- fendant's counsel. But far as that case goes, it does not help the defendant. There the identical money of the plaintiff was found in the possession of the defendant, who had got it unlawfully out of the hands of the plaintiff's agent. The case of Hasser v. Wal- lis, 1 Salk. 28, was also cited by the defendant's counsel; but it does not sustain him. Hasser, the plaintiff, being a feme sole. married Wallis, the defendant ; he made a lease of her land, and received the rent. She then discovered that Wallis had a former wife, and thereupon sued him in assumpsit for the money he had received. It was insisted that Wallis having no right to receive, the tenant was not discharged; that therefore an action lay against the tenant, who might have his remedy over against Wal- lis. But the court held, that Wallis was visibly a husband, and the tenant discharged ; at least the recovery against Wallis by the plaintiff would be a satisfaction to her, and discharge the tenant. It is plain that this case has no analogy to the one before us. Ser- geant and Harris were not visibly entitled to the reward — pay- ment to them was va. no sense payment to Stryker; but the sheriff remained as much bound to him, as if he had thrown so much money into the fire. He did not pay them Stryker 's money, but his own; and Stryker was neither bound to go after them for it, nor had he any more right to do so, than he would have had, if they had found Jones's pocket book in the street, with fifty dol- lars in it. If a man goes to my debtor and personates me ; and my debtor pays him, supposing he is paying me, it is clearly money paid to my use ; and in such ease I may at my election sue my debtor, or proceed against the impostor; for the money was paid him for me, and he received it as mine. But, my debtor cannot give me a right of action against a third person, by paying him money which he claims a right to in opposition to me; and thus put it in my power to compel such third person to establish his rights as against the debtor, in a suit between me and such third person. There is still another view which may be taken of this case, which I think is conclusive. It is admitted that Jones, the sheriff, may sustain assumpsit against the defendants for so much money had and received to his use ; and this, in virtue of his general or absolute right of property in the money in question. If Stryker can maintain this action, it must be in virtue of his general right of property therein. Now, a right of action for the same prop- erty, as well on contract as tort, may exist in distinct persons^ at the same time ; but must it not be, where the contract is only im- plied, by virtue of some special right of property in the one, and general right in the other? An agent having some beneficial in- terest in the performance of a contract (as for commissions, etc.) may sue upon it; as a factor, broker, warehouseman, carrier and others, and so may the principal. 1 Chit. PI. 5 ; but they do not sue in the same right. It requires no argument to prove that an absolute and exclusive right to the same property cannot exist Sec. 3 b.\ EIGHTS GROWING OUT OP CONTRACT. 665 in distinct persons at one and the same time, by virtue of an im- plied contract: if this be so, how can a right of action grounded upon such an absolute and exclusive right exist in distinct persons at the same time ? It cannot be. If Jones, the sheriff, can sue for this money, Stryker. cannot. Upon the whole, I am of opinion that the judgments below must be reversed. Stryker cannot maintain this suit against the de- fendants below; they have got what does not belong to them; but that is no wrong to him. His right to the reward at the hands of the sheriff is as perfect as it ever was; and if he has released it, it is his own fault or misfortune. I see nothing to prevent the sheriff from recovering the money he has paid the defendants, if in fact they did not retake the prisoner. . . . Judgment re- versed. This form of action lies to recover money paid on a total failure of consideration, Barickman v. Kuykendall, 6 Blackford, 21; Manning v. Fountain, 147 N. C. 18, 60 S. B. 645, inserted, post, in this subsection. Money must have been received by the defendant, or such a state of facts must be shown as will raise a presumption that money was received. Helvey v. Bd. Comrs., 6 Blackf. at p. 318; Hicks v. Critcher, 61 N. C. 353; or some equivalent which was treated as money, Rowland v. Barnes, 81 N. C. at p. 240. This action lies for money placed in the hands of A to be paid to B. Peacock v. Williams, 98 N. C. at p. 328, 4 S. B. 550, which case shows the limits of this doctrine; also for money paid by the plain- tiff to the defendant through mistake, Houser v. McGinnas, 108 N. C. 631, 13 S. B. 139. As to privity, see the next succeeding case and Hardy v. Williams, 31 N. C. 177; Bryant v. Peebles, 92 N. C. 176; Peacock v. Will- iams, supra; Coffey v. Shuler, 112 N. C. at p. 625, 16 S. E. 912; Woodcock V. Bostic, 118 N. C. 822, 24 S. E. 362; Keller v. Ashford, 133 U. S. 610, 621, 10 Sup. Ct. 494. For sundry rulings as to when the action for money had and received will and will not lie, see 2 L. R. A. (N. S.) 563, and note (money deposited in lieu of bail by one illegally detained) ; 4 lb. 1198, and note (money paid to a labor union to avoid a boycott) ; 4 lb. 363, and note (by an agent for money of his principal paid out by the agent through mistake; for overpayments); 11 lb. 234, and note (money paid In settlement of life policy under the erroneous impression that the as- sured is dead) ; 10 lb. 49, and elaborate note (right of drawee of forged check or draft to recover money paid thereon); 11 lb. 1104, and note (taxes illegally exacted); 22 lb. 862, 872, and notes (license tees unlaw- fully exacted under color of authority); 13 lb. 267, and note (money de- posited with an agent, stakeholder, etc., for an illegal purpose) ; 23 lb. 553, and note (for money paid to an agent upon a contract which the principal repudiates); 23 lb. 1092, and note (by a bank for money paid on customer's check through mistake — cannot recover) . See note at the end of ch. 14, post. See "Money Received," Century Dig. §§ 14-20; De- cennial and Am. Dig. Key No. Series § 5. NORWOOD V. O'NEAL, 112 N. C. 127, 16 S. E. 759. 1893. Privity. Agreement Express or Implied. [Action for money had and received to plaintiff's use. Verdict and judgment against defendant, and he appealed. Reversed. Plaintiffs were entitled, as next of kin, to a share in their grand- mother's personal estate. Their father received such share — ^not for the children, but for himself, he and the administrator of the grandmother 666 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. being under the erroneous impression that It belonged to him as his own. The judge refused to charge that plaintiffs could not recover the money so received by their father.] BuRWELL, J. It appears from the case on appeal that the ad- ministrator of one Elizabeth Perry paid to the defendant a cer- tain sum of money on December 27, 1867, thinking that he was entitled to receive it as a distributee of that estate. His wife, a daughter of Elizabeth Perry, had died before the death of her mother, and the plaintiffs are his children. "When the defendant received this money he gave the administrator a receipt for the same ' ' in full of his interest in said estate, ' ' in which he stipulated that, "should any lawful claim come against said estate," he would "refund his proportionate part of said lawful claim." The promise of the defendant was to the administrator of Eliza- beth Perry, and no one but him or his successor can enforce that promise. The money was not received by defendant under any agreement, express or implied, that he would hold it for the plain- tiffs. On the contrary, it was received expressly for his own use ; and, whatever may be the rights of the plaintiffs against the ad- ministrator, who has failed to pay to them the money they may be entitled to from their grandmother's estate, it seems very clear that thej^ have no cause of action against the defendant, and his honor should have charged the jury, as requested, that upon the evidence and the admissions the plaintiffs could not recover. Error. See "Money Received," Century Dig. §§ 14-20; Decennial and Am. Dig. Key No. Series § 5; "Executors and Administrators," Century Dig. § 1326; Decennial and Am. Dig. Key No. Series § 318. MANNING V. FOUNTAIN, 147 N. C. 18, 19, 60 S. E. 645. 1908. Waiving Tort and Suing in Assumpsit, and Waiving Contract and Suing in Tort. Total Failure of Consideration. Receipt of fhe Money iy Defendant. [Action in a justice's court to recover $175, as money had and received to plaintiff's use, upon an entire failure of consideration. The case was taken to the superior court by appeal and in that court judgment was rendered against the plaintiff, and he appealed. Reversed. The controversy arose out of a transaction in which "Webb gave his negotiable note to Fountain for a horse furnished to Manning on ap- proval. The horse was returned to Fountain, because unsatisfactory; but Fountain had negotiated the note and, consequently, Webb was forced to pay it. Haying paid this note, "Webb brought this action to recover from Fountain the money so paid. Manning was joined as coplaintiff. The judge ruled that the action was necessarily in tort and, hence, the justice had no jurisdiction.] Bro"wn, J. . "We think that his honor erred in assum- ing that the action was in tort, and that the justice had no juris- diction. "When the defendant solicited and accepted the negoti- able note, he took it as so much ca.sh, and upon an implied con- Sec. 3 C] RIGHTS GROWING OUT OP CONTRACT. 667 tract that he would return it in case the trade with the tenant was not effected. The plaintiff does not allege a fraudulent intent or a knowingly false representation upon the part of the defend- ant. He sues for money had and received upon the allegation that there has been an entire failure of consideration. The plaintiff, even if a tort had been committed growing out of a fraudulent and false representation, had a right to waive it, and sue for money had and received. Such an action is ex contractu and not ex delicto. Winslow v. Weith. 66 N. C. 432; Bullinger v. Mar- shall, 70 N. C. 526. Upon this theory it has been held that where defendant wrongfully took into his possession timber logs of plaintiif, sold them, and received the money, the plaintiff might waive the tort, and sue for the money. Land Co. v. Brooks, 109 N. C. 700, 14 S. E. 315. B converse it has been held when the breach of contract involves a tort that the complaining party may waive the contract and recover damages for the tortious injury. Bowers v. Railroad, 107 N. C. 722, 12 S. E. 452. The judgment of the superior court is reversed, and the cause remanded for trial. Error. See Mcintosh Cont. 18. See "Action," Century Dig. §§ 196-215; Decen- nial and Am. Dig. Key No. Series § 28; "Justices of the Peace," Century Dig. § 115 ; Decennial and Am. Dig. Key No. Series § 37. (c) Money Paid to Another's Use. CONKLIN V. SMITH, 3 Indiana, 284. 1852. Assumpsit for Money Paid to Defendant's Use Distinguished from As- sumpsit for Money Had and Received to Plaintiff's Use. Gist and Essentials of Assumpsit for Money Paid, etc. [Smith brought assumpsit for money paid to the use of Conklin. Judg- ment against Conklin, who carried the case to the supreme court by writ of error. The declaration was for money paid, laid out, and expended by Smith to the use of Conklin. The facts are stated in the beginning of the opinion.] Blackford, J. . . . There was evidence tending to prove that certain rent due to Smith, the plaintiff, from a tenant who had occupied certain real estate of Smith's, had been improperly received from the tenant by Conklin, the defendant. But if it be admitted that Smith has a legal claim against Conklin for the money received by Conklin, it cannot be recovered in this action for money paid. The proper form of action in such ease would be for money had and received. The plaintiff contends that there is evidence tending to show that he paid the money to the defendant under a mistake of facts. But if there is such evidence, it only tends to show the plaintiff's right to recover under a count for money had and received — not for money paid. To sustain a count for money paid, laid out, and expended, there must have been a payment of money by the plain- •668 EIGHTS GROWING OUT OF CONTRACT. [CJl. 8. tiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount. 2 Saund. PI. and Ev. 402. Judgment reversed. While a request is essential, still a subsequent ratification or recogni- tion of the payment is sufficient, as the request may be express or im- plied. Taylor v. Cotton, 28 N. C. 69. Giving his own non-negotiable note for the debt to which he is surety, will not sustain the action of the surety against his principal, because giving such note is not a payment of the money. Pitzer v. Hermon, 8 Blackford, 112. See "Money Paid," Century Dig. §§ 1, 21; Decennial and Am. Dig. Key No. Series §§ 1, 6; "Payment," Century Dig. § 291; Decennial and Am. Dig. Key No. Series § 89. MEADOWS v. SMITH, 34 N. C. 18. 1851. Offlcious Payment. [Assumpsit for money paid to the use of the defendant. Verdict and judgment against defendant, and he appealed. Reversed. Meadows, acting as Smith's agent, employed R. and H. to build a flat boat for Smith at a specified price — the boat to be finished by a fixed date. Smith refused to accept and pay for the boat, because not finished in time. Meadows brought an action against Smith in the names of R. and H. for the price of the boat, but that action ended in a nonsuit. Meadows then paid R. and H. without being forced so to do and without being requested or authorized by Smith to make such payment. The judge charged that upon these facts the plaintiff. Meadows, could re- cover of the defendant the amount paid to R. and H.] Pearson, J. We can see nothing to distinguish this ease from the ordinary one of an agent, who engages work to be done for and in the name of his principal, ^vhose name and residence he dis- closes. The agent is under no legal obligation to pay for the work, and if he does pay for it, he will not be able to make good the necessary allegation, that he "paid the money for the use of his principal and at his instance and request." In this case, the defendant had, on demand made by the build- ers of the flat, expressly refused to pay. Whether his refusal was upon sufficient cause is not material; he had expressly refused to pay, and a suit was pending against him at the time the plaintiff alleges he paid the money for him; but the idea, that he paid it at his instance and request, is out of the question, in the absence of any prior legal obligation to do so; and the defendant had cause to complain, that thereby the matter which he saw proper to contest with the builders of the flat was, without his consent, put an end to by the officious interference of the plaintiff, who now seeks to make him pay for the flat, without any inquiry as to the merits of the defense, upon which he was relying in the action brought by the builders. . .- Venire de novo. The principal case is approved in Osborne v. McCoy, 107 N. C. 726, 12 S. B. 383. See Cowles v. Cowles, 121 N. C. at p. 276, 28 S. E. 476, for officious payments. See "Principal and Agent," Century Dig. § 77; Decennial and Am. Dig. Key No. Series § 77. fSeC. 3 d.] EIGHTS GROWING OUT OF CONTRACT. 669' NICHOLS V. BUCKNAM, 117 Mass. 488. 1875. Payments Not Officious. [Action by Nichols to recover from Bucknam money paid to the use of Bucknam without any express request from him to do so. Judgment against defendant, who alleged exceptions. Affirmed. Nichols employed Scott to build some houses. Scott sublet the con- tract for the plastering and brick work to the defendant. The defend- ant employed laborers on the buildings and did not pay them, where- upon they filed liens against the plaintiff's property, pursuant to a law giving them such a right. They also brought an action against Nichols, the plaintiff, to subject his property to the satisfaction of such liens. Nichols resisted the claims, but judgment was rendered against him and, in order to prevent a sale of his property to satisfy such judgment and liens, he paid them off. He brought this action against Bucknam to re- cover the amount so paid. There was no direction or express request by the defendant that Nichols should make the payments above mentioned; nor did the defendant ever promise to reimburse Nichols. The judge ruled that, upon the foregoing facts, the law implied a promise by the defendant to repay Nichols.] Ames, J. It appears upon this report that the plaintiff, in order to save his property from being sold on legal process, has been compelled to pay a debt which was really due from the defendant. Under such circumstances, the law implies a re- quest on the defendant's part, and a promise to repay; and the plaintiff has the same right of action as if he had paid the money at the defendant's express request. Exall v. Partridge, 8 T. R. 308; 1 Smith's Lead. Cas. (5th Am. ed.) 70, a, 73; Hale v. Huse, 10 Gray, 99. . Exceptions overruled. See also Railroad v. Railroad, 147 N. C. at pp. 385, 386, 61 S. E. 185, and Cowles v. Cowles, 121 N. C. at p. 276, 28 S. E. 476, citing 15 Am. & Eng. Bnc. Law, 826, 827 (now pp. 1099, 1100 in 2d ed.). See "Money Paid," Century Dig. § 2; Decennial and Am. Dig. Key No. Series § 1. (d) Assumpsit for Goods Bargained and Sold, and for Goods Sold and Delivered. STEARNS V. WASHBURN, 7 Gray (Mass.), 187. 1856. Assumpsit for Goods Bargained and Sold Distinguished from Assumpsit for Goods Sold and Delivered. The Common Counts. [Action on contract for the price of the unsevered grass on a lot, which grass the plaintiff claimed to have been purchased from him by the de- fendant. Verdict and judgment against the defendant, and he appealed. Reversed. The declaration was upon an account annexed thereto, which was as follows: "Mr. David Washburn to Joshua Stearns, Dr. For grass on lot No. 8, Winter Hill, $7.00." There was proof of an oral sale and pur- chase of the unsevered grass on the lot, which the defendant was to cut and remove; but defendant did not cut the grass nor use it in any way, although there was nothing to prevent his doing so. Defendant derived no benefit from the grass. The defendant insisted that the plaintiff could not recover in this form of action. The judge ruled otherwise, and the defendant excepted.] 67 U EEGHTS GROWING OUT OF CONTRACT. [CJl. S. Metcalp, J. As we understand the practice act of 1852, c. 312, s. 2, which has changed the form of declaring in personal actions, it allows a count on an account annexed to be used only when one at least of the items of the account "would be correctly described by some one of the common counts, according to the natural im- port of its terms. ' ' The ' ' common counts ' ' we understand to be those which were formerly termed counts in indebitatus assump- sit; as for money had and received, for money lent, for money paid, for goods sold and delivered, for goods bargained and sold, etc. In the schedule of forms prescribed by that statute, the count on an account annexed is required to be thus : ' ' And the plaintiff says the defendant owes him dollars, according to the account hereto annexed. ' ' In the present case, this form is adojjted, and the account annexed is "for grass on lot No. 8, Win- ter Hill, $7.00." The evidence, at the trial, was of a contract of sale, from the plaintiff to the defendant, of the grass growing on the said lot, which grass was to be and might have been cut and carried away by the defendant, but which he omitted to cut and carry away. Now if any of the common counts would have correctly described the plaintiff's claim, it must have been either that for goods sold and delivered, or that for goods bargained and sold. If he could not have maintained either of these counts, on the evidence, then he cannot maintain this count on the account annexed. We are of opinion that the evidence would not have supported tdther of those counts. The contract of the parties was an executory con- tract of sale, to be completed by the defendant's severing the grass from the land. Until severed, the grass was not personalty, not goods or chattels, but was part of the realty, and remained the property of the plaintiff. Claflin v. Carpenter, 4 Met. 582, 583 ; Lewis v. Culbertson, 11 S. & R. 48 ; Waddington v. Brislow, 2 Bos. & Pul. 455, by Heath, J. ; Crosby v. Wadsworth, 6 Bast, 610, by Lord Ellenborough ; Evans v. Roberts, 5 B. & C. 832, by Baylby, J. ; Whitmarsh v. Walker, 1 Met. 315, by Wilde, J. -, Miller v. Baker, 1 Met. 33, by Dewey, J. But if the grass could be regarded as goods, yet there was no such delivery of it to the defendant as is necessary to entitle the plaintiff to maintain a count for goods sold and delivered. To maintain that count, it is essential that the goods should have been delivered to the defend- ant or his agent, etc., or that something equivalent to a delivery should have occurred ; and if not delivered, but still on the prem- ises of the vendor, though packed in boxes furnished by the pur- chaser, the plaintiff will be nonsuited, if he has declared only for goods sold and delivered ; for he should have declared for goods bargained and sold, or in a special count. And if there has been no delivery of the goods, even the count for goods bargained and sold (not showing a delivery) cannot be maintained, unless it appear that there has been a complete sale, and the property in the goods has become vested in the defendant, by virtue of the sale, and an actual acceptance of the commodity by the defend- Sec. 3 d.] RIGHTS GROWING OUT OP CONTRACT. 671 ant. These positions are laid down in 1 Chit. PI. (12th Am. ed.) 345, 347, as the result of the latest decisions of the English courts, combined ^vith the earlier decisions cited in the previous editions of that work. The conclusion of the matter seems clearly to be this, namely, that the plaintiff, on the evidence stated in these exceptions, could not maintain an action on any of the common counts, and there- fore cannot maintain this action on a count upon the annexed account ; but that he should have declared specially on the eon- tract of sale, and the breach of it by the defendant. The action, in its present form, might have been maintained, if the defendant had taken the grass from the land, according to his agreement, and had not paid for it ; for then, as he would have been liable on the common count for goods sold and delivered, he would have been liable also on the count adopted in this suit. See Bragg v. Cole, 6 Moore, 114; 2 Saund. PI. and Ev. (2d ed.) 91. The verdict must be set aside, and a new trial granted. On the new trial, the plaintiff will undoubtedly obtain leave to amend his declaration. See "Sales," Century Dig. § 936; Decennial and Am. Dig. Key No. Series § 340; "Account, Action on," Century Dig. § 2; Decennial and Am. Dig. Key No. Series § 2. McRAB V. MORRISON, 35 N. C. 46, 49. 1851. Assumpsit for Goods Sold and Delivered for Cash or on Credit; When Purchaser Fails to Give a Note, etc., for the Price, or Otherwise Fails to Comply with the Terms of sale. Written and Oral Contracts of Sale. [Assumpsit for bacon sold and delivered. The contract of sale had teen reduced to writing and the writing was lost. The proof was, of the sale and the delivery and that the price was to be paid twelve months thereafter, which period had expired when this action was brought. The written contract was not negotiable, nor was it under seal. The plain- tiff declared in assumpsit for goods sold and delivered, and not upon the lost written contract. Verdict and judgment against the defendant, and he appealed. Affirmed. Only so much of the opinion as bears upon the action of assumpsit is inserted here.] Pearson, J. . . . It is further ob,iected that the plaintiff ought to have declared specially upon the written contract, and could not maintain assumpsit for goods sold and delivered. There is no distinction between a parol and a written contract, unless the latter is under seal, when covenant is the proper action. If a promissory note be given for the price, the original cause of ac- tion is not merged; assumpsit for goods sold and delivered will lie, and the note may be used as evidence. Stedman v. Goode, 1 Esp. N. P. e, 5. It is said by the counsel for the defendant that assumpsit for goods sold and delivered lies only when the price is due at the time of the delivery, and if by the agreement the price is to be 672 EIGHTS GROWING OUT OF CONTRACT. [Ch. 8. paid at a future day, the plaintiff must declare on the special eon- tract. This distinction is unsupported by authority. The only difference between a sale for cash and a sale on time is that in the former case assumpsit may be brought forthwith ; in the latter it cannot be brought until after the time of credit has expired. Haskins v. Dupervy, 9 East, 498. In Helps v. Winterbottom, B. & Ad. 431, it is held, if a sale is made on time and a note and security are not given as agreed on, assumpsit will lie at the end of the time, or the party may sue before the expiration of the time, when he must declare specially for the omission to give the note and security. In the present case the action is brought after the day of payment, and there is no reason for requiring the plaintiff to declare specially upon the written contract. Judg- ment affirmed. See "Sales," Century Dig. §§ 927-942; Decennial and Am. Dig. Key No. Series § 340. HANNA V. MILLS and HOOKER, 21 Wend. (N. Y.) 90. 1839. Assumpsit for Goods Sold and Delivered on Credit, Where the Purchaser- Fails to Give the Note, etc.. Pursuant to the Terms. [Action of assumpsit for goods sold and delivered. Mills and Hooker were the plaintiffs and Hanna the defendant. The judgment was against Hanna who carried the case to the supreme court by writ of error. The judgment was reversed on a point Immaterial to the matter here con- sidered. Mills and Hooker sold a lot of goods to Hanna upon a credit of six months, with the understanding and stipulation, as part of the terms of sale, that Hanna was to give a satisfactory note for the price. Hanna failed to give the note. The sale was made in March, 1836, and this ac- tion was brought in April, 1836. The note stipulated for was to mature six months from the sale. One of the points made was, that the sellers could not sue until the six months had elapsed. The sellers declared on the special contract which stipulated that the note should be given, and claimed damages for the purchaser's failure to comply with such contract. Only so much of the opinion as discusses this question, Is here Inserted.] Bronson, J. . . "When goods are sold to be paid for by a note or bill payable at a future day, and the note or bill is not given, the vendor cannot maintain assumpsit on the general count for goods sold and delivered, until the credit has expired ; but he can sue immediately for a breach of the special agreement. 4 East, 147; 3 Bos. & Pui 582; 9 East, 498; 3 Camp. 329. In such an action he will be entitled to recover as damages the whole value of the goods, unless, perhaps, there should be a rebate of interest during the stipulated credit. The cases referred to by the coun- sel for the plaintiff in error give no countenance to the argument in favor of a different rule of damages. The right of action is as perfect on a neglect or refusal to give the note or bill, as it can be after the credit has expired. The only difference between suing at one time or the other, relates to the form of the remedy ; in the Sec. 3 d.] RIGHTS GROWING OUT OP CONTRACT, 673 one case the plaintiff must declare specially, in the other he may declare generally. The remedy itself is the same in both cases. The damages are the price of the goods. The party cannot have two actions for one breach of a single contract; and the contract is no more broken after the credit expires than it was the moment the note or bill was wrongfully withheld. . Judgment re- versed. That an action will lie for damages for breach of contract, before the expiration of the stipulated time of credit, if the purchaser fail to give a note or mortgage, or to do other acts stipulated for as terms of sale, see Tiffany on Sales (2d ed. Hornbook Series), 345; Bishop on Cont. (1st ed.) §§ 690-692; Wolf v. Marsh, 54 Gal. 228, which quotes Bishop on Cont. supra, with approval. See 3 L, R. A. (N. S.) 908, 12 lb. 180, and notes, for this rule, and for what actions will not lie. See also on the general subject of the effect of one party's refusal to abide by a contract of sale and purchase, Benjamin on Sales (Bennett's Ed.), 596, n. 4; 3 L. R. A. (N. S.) 1042, and note. Here attention may be called to the following points connected with actions on accounts for goods sold and delivered: Ordinarily a judgment "by default final cannot be entered in an action for goods sold and deliv- ered — ^it should be by default and inquiry. Witt v. Long, 93 N. C. at p. 391; Jeffries v. Aaron, 120 N. C. 167, 26 S. E. 696, which inquiry should be made by a jury at the term next after the appearance term. It cannot be had sooner if resisted. Witt v. Long, 93 N. C. at p. 391; Brown v. Rhinehart, 112 N. C. 772, 16 S. E. 840. But if the complaint alleges an express promise to pay absolutely a certain sum of money, particularly specified in the complaint, judgment by default final may be entered al- though the action be to recover for goods sold and delivered on an open account, provided the complaint be verified. Hartman v. Farrior, 95 N. C. 177; Skinner v. Terry, 107 N. C. at p. 108, 12 S. E. 118; Williams v. Lumber Co., 118 N. C. at p. 936, 24 S. E. 800. See "Sales," Century Dig. § 1091; Decennial and Am. Dig. Key No. Series § 374. BOYLE V. BOBBINS, 71 N. C. 130. 1874. Splitting Accounts in Assumpsit for Goods Sold. etc. [Action before a justice of the peace to recover a balance claimed un- der a contract for building, etc., for which a mechanic's lien had been filed. Judgment for plaintiff in the justice's court. The defendant ap- pealed to the superior court. There the judge reversed the judgment of the justice and gave judgment for the defendEint, from which the plain- tiff appealed. Reversed. The original debt due to plaintiff was $346.43. He filed his lien for that amount and then assigned all of the claim except $137 to a third person. The defendant settled the amount so assigned by giving a note and mortgage before this action was brought. This action is brought for the $137. The defendant insisted that the justice not having juris- diction of amounts over $200, the plaintiff could not confer jurisdiction by dividing his claim as above indicated. The judge so ruled.] Rodman, J. As to the jurisdiction of the justice as affected by the original amount of the debt. The general rule is plain and familiar. A creditor whose demand against his debtor consists of an account of several items, either for goods sold or for labor done, at different times, each of which is less than .$200, although Remedies — 43. 674 EIGHTS GEOWIXG OUT OF CONTRACT. [Ch. S. the aggregate amount of the account exceeds $200, may sue be- fore a justice for any number of such items not exceeding $200. Each item is, in fact, a separate debt, and there is nothing to for- bid a separate action on each. It is true that if a plaintiff wan- tonly or maliciously should bring a great number of actions on separate items which might have been consolidated, the court will compel him to consolidate them at his cost. If, however, the debt, whether it be proved by a written or an oral contract, is an en- tire one, consisting of but one item, and exceeds $200, it cannot be divided so as to give a .justice jurisdiction. For example, a sellei' of a horse for $300 cannot divide his account and have two actions before a justice. Neither can a carpenter who has built a house upon contract for an entire sum over $200, nor a material man who has furnished materials upon an entire contract. In this case, although it was stated expressly in order that the question of jurisdiction might be raised for decision, the character of the plaintiff's demand is not stated. We can only presume it, by considering on which party the duty fell of setting forth its character. The demand was on the face of the warrant within the jurisdiction. It lay on the defendant to allege matter to de- feat it as he might have done prima facie by showing that the debt was an entire and indivisible one. Not having done so, the pre- sumption is that it was composed of several separable items. This presumption from the course of pleading is sustained as a fact by the ratification by the defendant of the assignment of a part of the original account to Amyett. Even if the original debt had been entire, a consent by the de- fendant to the assignment of a part of it, if given at or before the assignment, would have been evidence of promises to pay the debts thus severed, and a subsequent ratification is certainly evi- dence of an assent to the severance for the purpose of jurisdiction. Our conclusion is that the jurisdiction of the justice is not de- feated by this objection. Judgment reversed. See "Action," Century Dig. §§ 552, 604; Decennial and Am. Dig. Key No. Series § 53; "Justices of the Peace," Century Dig. §§ 168, 169; De- cennial and Am. Dig. Key No. Series § 44. MAGRUDER v. RANDOLPH, 77 N. C. 79. 1877. Splitting Accounts in Assumpsit for Goods Sold and Delivered. [Action before a justice of the peace for goods sold and delivered. The plaintiff sold goods to defendants at one sale to the amount of $526.25, made up of twenty items. The plaintiff brought several actions, each for a part of this claim. The defendants insisted that, as the whole trans- action took place at once, the plaintiffs could not split up the claim into several causes of action; and, as the justice had no jurisdiction of the whole amount, jurisdiction could not be conferred upon him by this di- vision of a cause of action indivisible in law. On an appeal to the su- perior court, the judge, being of opinion with the defendants, dismissed the action, and the plaintiffs appealed. Affirmed. The facts appear in the beginning of the opinion.] ^ec. 3 d.] RIGHTS GROWING OUT OP CONTRACT. 675 Faircloth, J. One of the defendants went into the plaintiffs' store and purchased goods, going through the building from floor to floor, selecting and agreeing on the price of each item as he went, for example, "twenty-six pair of men's brogans, $1.75 per pair, $45.50," and so on through the whole purchase. He went through the building continuously, not leaving it until his pur- chases were completed, and not until the bill was made and fur- nished to him, consisting of twenty items similar to the one above given, aggregating $526.25. The bill was marked "Terms, 4 months, interest charged after maturity." After maturity and non-payment, the plaintiffs divided said account into three parts, taking the first ten items aggregating $196.80, as one part, on which the present action was commenced before a justice of the peace, and the defendants deny the juris- diction of the justice. When an account consists of divers and separate dealings, and at different times, or is a running account from year to year, either for goods sold, work done or materials furnished, it is well settled that the creditors may "split it up," and proceed on each separate item before a justice. This was the class of cases considered in Waldo v. Jolly, 49 N. C. 173 ; Cald- well v. Beatty, 69 N. C. 365, and other similar cases. But we think the case before us is not embraced by the principle of those cases. Here the dealing was continuous and nothing appears on the face of it, or in the account rendered, indicating that either party intended that each item should constitute a separate transaction and cause of action which could have been easily done, and we are to presume would have been done, if so intended. Suppose the parties at the time of the purchase had divided the account as 'the plaintiffs have now done, and promissory notes had been given for each part, maturing at two, four, and six months respectively; no one would doubt that they intended three separate causes of action, and that it would be so decided. And suppose on the con- trary that one promissory note had been given for the aggregate sum, $526.25, on four months time with interest after maturity, would this differ from the account rendered with an express oral promise to pay it, except in the kind of evidence of the debt and of the promise to pay? Again, suppose the time occupied in mak- ing the purchase was one hour and the defendants relied upon the statute of limitations, and upon a minute examination the fact should be disclosed that three years immediately preceding the precise moment when the summons issued would include^ the latter part of the account and exclude the first part ; or suppose the plaintiffs had brought suit for the aggregate amount in the su- perior court and had insisted that the first item became due one hour before the last and claimed interest on it accordingly, and so on with the other items. It is very clear that the court would not entertain such propositions, and yet we do not see how it could avoid doing so, if each item is a distinct cause of action con- tracted at different times, on the well understood principle that 676 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. one portion of an open account may be barred by the statute, while the other is not. . . . Judgment affirmed. See "Action," Century Dig. §§ 552, 604; Decennial and Am. Dig. Key- No. Series § 53; "Justices of the Peace," Century Dig. §§ 168, 169; De- cennial and Am. Dig. Key No. Series § 44. MARKS V. BALLANCE, 113 N. C. 28, 18 S. E. 75. 1893. Splitting Up Accounts in Assumpsit for &oods Sold, etc. [Action upon an account for goods sold and delivered, brought before a justice of the peace and carried by appeal to the superior court. Judg- ment against defendant, and he appealed. Reversed. Plaintiff sold and delivered to the defendant two bills of goods: one in May, 1891, amounting to $95.98; and one in October, 1891, amounting to $210.67, which was reduced by a payment to $142.67. After both bills were due, plaintiff rendered a consolidated statement of account to de- fendant, showing $238.65 as the balance due to plaintiff. Defendant made no objection to this statement of account. Some time after rendering this account plaintiff brought two actions against the defendant; — one for the bill sold in May, and the other for bill sold in October. The de- fendant insisted that the accounts having been consolidated by the ac- count stated could not be separated again.] BuRWEbL, J. We think that the matter involved in this appeal is determined by the case of Hawkins v. Long, 74 N. C. 781. The plaintiffs having seen fit to consolidate the items of their account against the defendant and to deduct therefrom the items of credit, and having rendered to the defendant a statement in which they struck a balance, and claimed that round sum as a debt, are bound ther£by unless the defendant has objected to such statement ; and this he has not done. On the contrary, he has as- sented to the rendered account, impliedlj^ by his failure to object thereto, and expressly by his pleas in the two actions brought against him, thus making himself bound with the plaintiffs by this account stated. Upon the facts agreed, the two actions should have been dismissed, and it is so ordered. Error. Reversed. See further on the subject of splitting up accounts, Jarrett v. Self, 90 N. C. 478; Simpson v. Elwood, 114 N. C. 528, 19 S. E. 598; Copland v. Tel. Co., 136 N. C. at p. 12, 48 S. E. 501; Mcintosh Cont. 586. If the con- solidated account be objected to when rendered, the plaintiff is remitted to his former right to treat the accounts as separate and distinct — and hence, to split the account into its original component parts. Copland V. Tel. Co., supra. See also on splitting accounts, 13 L. R. A. (N. S.) 529, and note. See "Account Stated," Century Dig. § 41; Decennial and Am. Dig. Key No. Series § 7. Sec. 4. Remedies on Negotiable Instruments. STORY V. ATKINS, 2 Strange, 719, 721, 725. 1727. Assumpsit at Common Law and Under Statute of '/ Anne, c. 9. [Action on the case upon several promises. The plaintiff declared: (1) On a promissory note; (2) Upon an indebitatus assumpsit for money lent; (3) For money paid and laid out to defendant's use. There were pleas, replication, and demurrer to the replication.! Sec. 4.] RIGHTS GROWING OUT OP CONTRACT. 677 Blencowe for the plaintiff: "At common law the party that was possessed of a promissory note had no other remedy to re- cover upon it, but by declaring upon an indebitatus assumpsit, in which action he might give the note in evidence, but was obliged to prove the consideration. The stat. 4 Ann. c. 9, gives the party the liberty of declaring upon the note itself ; and since the making of that statute, the note has been held to be sufficient evidence to maintain such action, without giving any further proof of the consideration : in this respect therefore these notes are altered by the statute, but in no other; for their lien is made no stronger than it was before; they are still only simple contracts, and the nature of their security is not changed, as was adjudged in the ease of Cumber v. Wane, Pasch. 7 Geo. in B. R., where in an action upon the case for money lent, the defendant pleaded a promissory note given in satisfaction, and it was held to be no bar. And if this is all the alteration which the statute hath made in respect to those notes, how can it be supposed, that it hath taken from the party what was his former and ancient remedy of declaring upon an indebitatus assumpsit? The statute only gives him an addi- tional and more easy method of recovering upon his note, but does not take from him his election of pursuing his former method, if he thinks it more proper for his case. And what proves this still more strongly, is the case of Bromwich v. Lloyd, in Lutw. 1585, where it is expressly held, that upon an indebitatus assump- sit a bill of exchange may be given in evidence ; and by the same reason a promissory note may be given in evidence on the like dec- laration ; for the statute 3 and 4 Ann. puts promissory notes upon the same footing as bills of exchange were before the making of that law. Therefore since the plaintiff might have given this note in evidence upon his declaration in the court below, it would ba a strange conclusion to say that the two actions are different in their nature, or to intend the cause of them to be different, when the same evidence will support both the actions. ' ' Raymond, C. J. The actions in the two counts are of such a nature, that they may be averred to be the same ; for the statut '. 3 and 4 Ann. only gives an additional remedy upon promissory notes, but does not take away the old one : and I think this note might have been given in evidence upon the indebitatus assumpsit, for the note imports the drawer's having so much money of the other's in his hands; and though it may not perhaps be allowed in evidence in such case as a promissory note, without proof of the consideration; yet it may undoubtedly be given in evidence on an indebitatus assumpsit, as a paper or writing to prove the defendant's receipt of so much money from the plaintiff. Hard's case, Salk. 23. See "Bills and Notes," Century Dig. §§ 1332-1336%; Decennial and Am. Dig. Key No. Series § 448. 678 BIGHTS GEOWING OUT OF CONTRACT. [C7t. 8. GARDNER v. CLARK, 5 N. C. 283, 286. 1809. Action of Debt on Negotiable Instruments. [Action of Debt upon a negotiable promissory note. "The case was re- ferred to the supreme court upon the question: Whether an action of debt can be maintained on this note?" Judgment was entered for the plaintiff.] Taylor, J. In Hardress, 485, it was held that an action of debt will not lie against the acceptor of a bill of exchange ; but the rea- sons given for that determination tend strongly to demonstrate that an action of debt will lie by the payee against the maker of a promissory note. It was said in that ease, that the acceptance does not create a duty any more than a promise made by a stranger to pay the debt of a third person, if the creditor will forbear his debt; and he that drew the bill continues the debtor, notwith- standing the acceptance makes the acceptor liable to pay it. But the making of a promissory note does manifestly create a duty, if a consideration be expressed, and raises an original obligation in the maker, for which an action of debt is a proper remedy, ac- fording to the general description of that action to be found in all the elementary writers. Blaekstone, 3 vol. 155, says, an action of debt will lie whenever a sum of money is due by certain and ex- press agreement, where the quantity is fixed and certain, and doe^ not depend on anj' subsequent valuation to settle. Comyns says, debt lies upon every express contract to pay a sum of money — Dig. tit. Debt. And in Woodeson, 3 vol. 95, it is laid down, that the ac- tion of debt may be brought whenever a determinate sum is claimed as due,whether the contract on which it arises is special or simple. The action of debt on simple contract has grown much into dis- use, in consequence of the defendant's being permitted to wage his law. and of the necessity imposed upon the plaintiff of proving his whole debt, or being precluded from recovering any part. This latter rule has been much relaxed in modem times, as aj)- pears in 2 Bl. R. 1221 ; Doug. 6 ; 2 T. R. 129 ; 1 H. Bl. 149 : and it is not now understood to be necessary that the plaintiff should recover the exact sum demanded. From this disuse of the action, a belief seems to have prevailed, that it could not be sustained and assumpsit has been the usual remedy on promissory notes But no decision is recollected to have been made in this state against the action of debt in such cases, and there is a great mod em authority in favor of it in precisely such a case as that befori the court. 2 H. Bl. 78. Judgment for the plaintiff. Indebitatus assumpsit will lie upon a negotiable instrument, and a recovery may be had upon either of these several counts: Upon the in- strument itself; for money paid, laid out, and expended by the plaintiff to the defendant's use; for money lent and advanced; or for money had and received by defendant to plaintiff's use. The action -will He by and against not only the original parties to the Instrument — such as payee and maker — but also by and against those secondarily connected there- with. — ^such as indorser and Indorsee, etc. In all counts and between all ISeC. l.\ RIGHTS GEOWiNG OUT OF CONTRACT. 679 parties to the instrument, the instrument is evidence to sustain the ac- tion o( assumpsit — ^but it is only presumptive evidence which the de- fendant may rebut by contrary proof. Banking Co. v. Myer, 12 N. J. L. 141, reviewing and reconciling a great number of English cases decided before 1831. It is not necessary to allege and prove a consideration in an action on a negotiable instrument, because the law presumes such consideration; but if the defendant introduces evidence tending to rebut this presump- tion, then the burden is on the plaintiff to show a valid consideration. Campbell v. McCormac, 90 N. C. at p. 492; see also § 5, post, of this chap- ter. See "Bills and Notes," Century Dig. §§ 1330, 1331; Decennial and Am. Dig. Key No. Series § 448. MORROW v. ALLMAN, 65 N. C. 508. 1871. Practice in Actions on Negotiate Instruments. Production of the In- strument at the Trial. [Action on a negotiable instrument. The defendant answered admit- ting the execution of the instrument and setting up sundry credits. Upon the trial the plaintiff insisted that, upon the admissions in the answer, it was not necessary that he should produce the instrument, and hence, declined so to do. Defendant demanded that it be produced, and plaintiff still refused. The defendant requested the court to charge that the plaintiff could not recover because of his failure to produce the in- strument and offer it in evidence. The judge refused to charge this, but on the contrary instructed the jury that the execution of the instru- ment being admitted by the answer, the plaintiff was entitled to re- cover without producing it. Verdict and judgment against the defend- ant, and he appealed. Reversed.] Reade, J. The only question necessary to consider in this ca^e is, whether, in an action on a negotiable instrument, the execu- tion of which is not denied by the answer, it is necessary to pro- duce the instrument on trial or account for its loss ? We think it is necessary to produce and file the instrument, in this case, a bond. It is the practice to do it, and there is much propriety in it. Being negotiable, how can it otherwise be known whether it has not been transferred? Or if kept back it may be subsequently transferred, and although such subsequent transfer would not subject the maker to its payment, yet he ought not to be kept in jeopardy of another suit. And furthermore, there may be, as was alleged in this case, payments endorsed upon the bond, of which the defendant ought to have the benefit. It was competent on the trial to require the plaintiff or his counsel to produce the paper, the same being admitted to be in their possession and in court; and in a proper case they might have been put under a rule. The usual way, however, is to notify the plaintiff to pro- duce the paper ; and upon his failure to do so, having the power, to nonsuit him. Rev. Code, eh. 31, § 82. Error. The principal case is approved in Shields v. Whitaker, 82 N. C. at p. 518, and in Raisin v. Thomas, 88 N. C. 148; but a failure to file the in- strument at the time the judgment Is entered does not Invalidate the judgment, as the filing may be done subsequently, nunc pro tunc. Bank V. Cotton Mills, 115 N. C. at p. 522, 20 S. B. 765. The section of the Re- 680 RIGHTS GROWING OUT OF CONTRACT. [Gh. 8. Vised Code referred to in the opinion is now sec. 1656 of the Revisal and refers to the production of documents generally. See "Bills and Notes," Century Dig. §§ 1584, 1585; Decennial and Am. Dig. Key No. Series § 488. Mccormick v. jernigan, iio n. c. 406, 14 s. e. 971. i892. Action on Lost Negotiable Instrument. [This was a proceeding before the clerk of the superior court to have a lost will admitted to probate. In the course of the opinion it is said:] Clark, J. . The setting up a lost deed is in the court of equity not because from the nature of the evidence it must be proven in that court, but because a decree was requisite for a re- conveyance, or to enjoin a reeoverj' by the grantor, and the like. Hence a bill for the re-execution of a deed lost or destroyed in the hands of a grantee cannot be sustained unless there are some ad- ditional grounds for relief. Hoddy v. Hoard, 2 Cart. (Ind.) 474. This is pointed out by Adams on Equity, 167. He also points out that the jurisdiction to set up a lost bond is in equity only because the obligor had a right to demand profert of the bond, and, when this could not be had, the remedy at law was gone, and plaintiff was compelled to go into equity to recover on the bond. He says that, after profert was dispensed with, equity courts held on to their acquired jurisdiction, though the reason for it had ceased. The. jurisdiction as to negotiable instruments arose from the right to require indemmty from liability of the paper sued on, and al- leged to be lost turning up in the hands of another party, but as to bills or notes not negotiable, this reasoning did not apply, and hence an action to recover upon them could be maintained at law though lost, and proof of their loss could be made in such action. Id. 168. In Moffit V. Maness, 102 N. C. 457, 9 S. B. 399, a judgment was rendered for the plaintiff on a bond. The case being carried to the supreme court by the appeal of the defendant, the court say, at p. 464: "It Is doubtful, from the record, whether any exception was made to the rendition of the judgment without accounting for the absence of the bond. It is, how- ever, insisted upon here, and to avoid any possible injustice it is ordered that the judgment be set aside, so that, if it appears that the bond has not been destroyed, and was negotiable, and cannot be produced, o proper indemnity may ie required by the court. Dan. Neg. Instr. vol. 2, § 1481." See also Dan. Neg. Inst. §§ 1475-1485. A justice of the peace has jurisdiction of an action on a lost instrument for the payment of money, where the sum demanded is within his jurisdiction. As the re- quiring of an indemnity is merely incidental to the mam relief sought, the justice may afford such relief. Fisher v. Webb, 84 N. C. 44; see Lutz V. Thompson, 87 N. C. at p. 337, inserted at ch. 12, post. See "Lost In- struments," Century Dig. §§ 27-29; Decennial and Am. Dig. Key No. Series § 14; "Wills," Century Dig. § 589. Sec. 4.] R[GHTS GROWING OUT OP CONTRACT, 681. ROBINSON V. BARBOUR, 5 Blackford, 468. 1840. When the Allegation of a Consideration is, or is Not, Necessary. Sullivan, J. Assumpsit by Barbour against Robinson. The declaration contains three counts. The first count states that the defendant on, etc., by his certain instrument in writing assigned to the plaintiff the sum of $136, being part of a certain claim then iu suit in the Jennings county circuit court against A. W. Dunn, and by said writing directed his attorneys to pay said amount to the plaintiff when it should be collected; and that the defendant did further, by said instrument of writing, guaranty that the said .sum of money should be collected within one year from the date thereof. The second count avers that the defendant, by his cer- tain instrument of writing, promised and guarantied that he would pay, or cause his attorneys or the clerk of the Jenning-s county circuit court to pay, to the plaintiff the sum of $136 within one year from the date thereof. The third count states that the defendant on, etc., by his certain instrument in writing, guaran- tied and undertook that S. and B., his attorneys, or the clerk of the Jennings circuit court, should, within one year from the date of said writing, pay to the plaintiff the sum of $136 out of the claim of said defendant against one A. W. Dunn then in suit in the Jennings circuit court, or, in default thereof, that he would pay the same himself. The defendant demurred to the first count, and pleaded the general issue to the second and third counts. The demurrer was overruled, and, by consent of parties, the court as- sessed the damages on the first count, and tried the is,sues on the second and third. Judgment for the plaintiff. The first count is defective in not showing a consideration for the defendant's promise. A valid consideration for the promise upon which a party is charged, is essential to a contract not under seal, and mvist exist although the contract be reduced to writing, otherwise the promise is void. Chit. Cont. 6. In declaring upon such a contract, it is necessary to disclose a sufficient considera- tion, or the promise will appear to be nudum pactum, and the dec- laration will consequently be insufficient. 1 Chit. PL 321. There are exceptions to this rule of pleading in the case of bills of ex- change and promissory notes, and some other legal liabilities, but the exception does not apply to such a promise as is laid in the count under examination. Ibid. As the count shows no con- sideration for the promise either of benefit to the defendant, or trouble or prejudice to the plaintiff, the demurrer to it should have been sustained. 3 Johns. 104; 4 Johns. 236, 280; 1 Saund. 211, n. 2 ; 4 Blackf . 173. The second and third counts are defective for the same reason, and the only question to be decided with regard to those counts is, whether the defect is fatal after verdict. We are of opinion that the defect is not cured by the verdict. A promise without a con- sideration is void, and no action will lie upon it. In Rann v. Hughes, 7 T. R. 346, n. (a), the declaration alleged that the de- 682 RIGHTS GROWING OUT OP CONTRACT. [Ch. S. fendant was liable as executor to pay the plaintiff the sum of 9S'i pounds, and being so liable he personally promised to pay the same. After verdict, the judgment was arrested, because no ad- ditional or sufficient consideration was shown for the enlarged responsibility of the defendant. In Courtney v. Strong, 1 Salk. 364, the judgment was arrested because there was no consideration for the promise laid in the declaration. So in the case of Beau- champ et al. V. Bosworth, 3 Bibb, 115, the judgment of the circuit court upon a writ of inquiry was reversed for the same defect. Chitty, in his Treatise on Pleading, p. 329, says, when no consid- eration is stated in the declaration, or when that which is stated is clearly insufficient or illegal, the defendant may either demur, or move in arrest of judgment, or support a writ of error. Judg- ment reversed. See Campbell v. McCormac, 90 N. C. at p. 492, cited in note to Gard- ner V. Clark, o N. C. 283, inserted supra. In Farlow v. Kemp, 7 Black- ford, 544, it is ruled that, to maintain assumpsit, it must be shown that the consideration moved from the plaintiff. See "Contracts," Century Dig. § 1661; Decennial and Am. Dig. Key No. Series § 334; "Bills and Notes," Century Dig. § 1477; Decennial and Am. Dig. Key No. Series § 465. Sec. 5. Performance of Conditions, When it !Must Be Al- leged. BRYAN V. FISHER, 3 Blackford, 316, 319, 330. 1833. Dependent and Independent Covenants. [Covenant on a lease in which Bryan demised certain premises to Fisher and covenanted in the lease to make certain improvements and supply some articles of furniture. Fisher, by the terms of the lease, agreed "to pay to said Bryan $65 for each year he occupies said prem- ises, to be paid at the expiration of each year, and to take good care of the property." Among other things, the defendant pleaded that the plaintiff had not performed those things which, by the terms of the lease, he had covenanted to do. After discussing the form of this plea, the opinion proceeds:] McKinney, J. . . . The plea assumes that the agreement contains covenants to be performed by the plaintiff, the perform- ance of which is essential to a recovery against the defendant, anil that, therefore, the non-performance of such covenants, regarded as conditions precedent, would be a bar to the action. It is cor- rect, as a general rule, that if there be in an agreement a condition precedent, its performance is necessary to entitle a party to re- cover. It is, therefore, material to inquire, whether the articles of agreement upon which this action is brought, contain a condi- tion precedent or not. In determining whether covenants are independent or depend- ent, certain rules have been laid down, enabling courts to reach the intention and meaning of the parties, when the instrument in its terms is vague and obscure: (1) If a day be appointed for the Sue. J.] KIGI-ITS GROWING OUT OF CONTRACT. B83 payment of money or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act, is to be performed, an Hction may be brought for the money, or for not doing such other act before performance ; for it appears that the party relied upon his remedy, and did not intend to make the performance a condi- tion precedent; and so it is where no time is fixed for the per- formance of that which is the consideration of the money or other act; (2) "When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defend- ant, without averring performance in the declaration. The cases of Boone v. Eyre, 1 PI. Bl. 273, note, and Campbell v. Jones, 6 T. R. 570, are cited as illustrations of the latter rule. Prom these eases, with which Harden v. Hayden, 2 Marsh. 359, and Payne v. Bettisworth, Ibid. 427, are accordant, it is settled "that where a party has received a part of the consideration for which he en- tered into the agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to enjoy that part, without either paying or doing anything for it; and more- over, as remarked in CampbeU v. Jones, the damages sustained by the parties would be unequal, if such covenant were held to be ii condition precedent." The law thus settled does not in its opera- tion leave the party, who is compelled to perform his agreement, without a remedy, for he can recover damages for a loss in not having received the whole consideration. Applying either of the rules to the agreement in this case, it is demonstrable that the covenants must be regarded as independ- ent, and the plea consequently bad. Here, the giving of the pos- session of the house and lots was the principal covenant on the part of the plaintiff ; it stands distinct ; the inducement to the cov- enant of the defendant, and the furnishing the kitchen, crane, etc., is a part only of the consideration of the defendant's contract,, contributing certainly to the enjoyment of the premises, but with- out which the premises are of value. The defendant was to have possession on the 1st day of June, and the plaintiff was to furnish a kitchen, etc., but at what time is not mentioned; the law would require within a reasonable time. If that time be protracted un- reasonably and injuriously to the interests of the defendant, he has his remedy by action. It would form only a part of the con- sideration of the defendant's contract, and not operate, as eon- tended, as a bar to the plaintiff's action. Suppose the crane not to have been furnished, or either of the tables mentioned, should the defendant have the enjoyment of the premises two years and not be liable for rent? Such a conclusion is palpably repugnant to the feelings, and surely in conflict with the intention and mean- ing of the parties. If these secondary objects, promotive of the enjoyment of the defendant, were not provided, when, in the in- terval between the execution of the articles of agreement and the 684 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. 1st of June ensuing, time sufficient may have been afforded, why take possession unless he looked to his remedy by action, or why continue in possession two years as admitted? By either of the rules for expounding contracts, the defendant is concluded. By the first, from his covenant to pay $65 rent, an- nually, during the term of five years, he continuing in the pos- session of the premises ; and by the second, because the plaintiff 's undertaking to furnish the kitchen, etc., constituted only a part of the consideration of the defendant's contract. The plea being insufficient, we are of opinion that the demurrer should have been sustained, and the pending issues tried. Judgment reversed. See the note to the principal case, 3 Blackf. at pp. 321, 322. See "Land- lord and Tenant," Century Dig. §§ 770-783; Decennial and Am. Dig. Key No. Series §§ 187-192. VANKIRjK v. TALBOT, 4 Blackford, 367. 1837. Dependent and Independent Covenants. Blackford, J. This was an action of covenant against Talbot for not delivering, agreeably to his contract, a certain number of hogs to Vankirk. The declaration states that the defendant had bound himself, by an agreement under seal, to deliver to the plaintiff 600 head of hogs of a certain description; and that the hogs were to be delivered at the defendant's own house in Put- nam county, and at the house of some person in the neighborhood of George Piercy's in the same county, between the first and fifth days of November, 1835 ; and that the plaintiff did, at the same time, bind himself to pay to the defendant $2.50 a hundred for the hogs, to be paid for on delivery at the pen. It is then averred that, at the time of the agreement, the plaintiff paid to the defend- ant $100 in part performance of the agreement; and that he has at all times been ready and willing to perform his agreement ac- cording to the true intent and meaning thereof. The breach as- signed is, that the defendant has failed and refused to keep and perform his covenant in this, viz., that he did not, at his own house in Putnam county, nor did he at the house of any person in the neighborhood of George Piercy's in said county, between the first and fifth days of November, 1835, deliver to the plaintiff the hogs mentioned in the agreement, nor has he at any time de- livered them to the plaintiff as he was bound to do; but the de- fendant, although often requested, has hitherto wholly refused to perform his covenant. The defendant demurred specially to the declaration, and as- signed as a cause of demurrer, that the plaintiff does not allege a readiness to pay the price of the hogs at the time and place of delivery. The circuit court gave judgment on the demurrer for the defendant. In this case, there were covenants to be performed by each party at the same time and at the same place ; and to enable one Sec. 6.] RIGHTS GROWING OUT OP CONTRACT. 685 of them to sue the other for a breach of the contract, the party who sues must show that he has performed or offered to perform his part, or that there is some legal excuse for his not doing so. The contract alleged in this declaration is ver>- imperfectly ex- pressed. The following may be considered its legal construction. It was agreed that Talbot, on the last convenient hour of the 4th of November, 1835, or, if he should so appoint, on the last con- venient hour of the 2nd or 3rd of that month, would deliver to Vankirk 600 hogs. The hogs were to be delivered at the defend- ant's own house, and at the house of some other person in Piercy's neighborhood — such part of them at one place, and such part at the other, as Talbot might choose. The house in Piercy's neigh- borhood was to be designated by Talbot , and notice thereof was to be given by him to Vankirk. The price of the hogs, except the $100 advanced, was to be paid to Talbot upon the delivery of the hogs at the pen. It was for Vankirk, in declaring upon this contract, to show that he had performed or offered to perform his part of it; or, if he had been prevented from doing so by the default of Talbot, that default should have been set out in the declaration. It would have been a sufficient excuse for the want of an averment, in this case, of the plaintiff's performance of his part of the contract, if the declaration had stated that the defendant did not inform the plaintiff at what house in Piercy's neighborhood a part of the hogs would be delivered; or how many of them would be deliv- ered there, and how many at the defendant's own house; that the plaintiff, therefore, was not ready, as he otherwise would have been, at the proper time and places to receive and pay for the hogs; and that the defendant had not delivered the hogs as he was bound to do. The declaration, however, contains no averment of facts, show- ing that the plaintiff had performed or offered to perform his part of the contract, nor does he show any legal cause for the omission of such averment. It is consequently bad on a general demurrer. Judgment affirmed. See Mclntosli Cont. 548-552; Revisal, § 498. See 21 L. R. A. (N. S.) 691. See "Contracts," Century Dig. § 1664; Decennial and Am. Dig. Key No. Series § 335. Sec. 6. Summary Proceedings to Collect the Purchase Money Due on Property Purchased at Judicial Sale. TOWNSHEND v. SIMON, 38 N. J. L. 239. 1876. Separate Action at Law. Summary Proceedings in the Cause. Order of Resale. Concurrent Remedies. [Action at law by a sheriff to recover the price of a parcel of land sold by him under a decree of foreclosure rendered by the court of chancery, and for damages resulting from the defendant's having refused to com- ply with his purchase. Judgment of nonsuit. Plaintiff moved to set aside the nonsuit. Reversed.] 686 RIGHTS GROWING OUT OF CONTRACT. [CIl. 8. Depue, J. The nonsuit in the court below was ordered on the ground that the remedy was not in an action at law, but by a pro- ceeding in chancery in the foreclosure suit to compel the defend- ant, as a purchaser under a sale by virtue of process out of the court of chancery, to take a conveyance and comply with the con- ditions of sale. It may be assumed, as an established doctrine of the court of chancery, that a purchaser under a decree by the act of purchase, submits himself to the jurisdiction of the court as to all matters connected with the sale which relate to him in the character of purchaser. Casamajor v. Strode, 1 Sim. & Stu. 381; Requa v. Rea, 2 Paige, 339 ; Shann v. Jones, 4 C. B. Green, 251. The sale may be set aside by an order in the original cause, without a new bill being filed. Brown v. Frost, 10 Paige, 243 ; Wetzler v. Schau- mann, 9 C. E. G-reen, 60. And the purchaser may appeal from such order, though he be not a party to the cause. Bailey v. Maule, 7 CI. & Fin. 121; note cited in National Bank of Metrop- olis V. Sprague, 6 C. E. Green, 462. It has also been held, that the purchaser may be compelled to complete the purchase, by a summary order in the original cause. Lansdown v. Elderton, 14 Ves. 512; Wood v. Mason, 3 Sumner, 318; Cazet v. Hubbell, 36 N. Y. 677; Siver v. Campbell, 10 C. E. Green, 465. The modern practice of the English courts is, by an order to direct the premises to be re-sold, and the purchaser to pay the costs and expenses of the sale, and also the deficiency (if any) in the price at the second sale. 2 Dan. Ch. Prae. 1282. This prac- tice seems to have originated with Lord Eldon in 1811, in Gray v. Gray, reported in 1 Beavan, 199 ; and the note to Harding v. Harding, 4 M. & Craig, 514. But if it be conceded that the court of chancery may compel a purchaser, by summary process, to complete his purchase, that is no reason for holding its jurisdiction exclusive. It is only where the right, as well as the remedy, is the creature of equity, with- out any legal obligation for its foundation, that the jurisdiction of the courts of equit}' is exclusive. On the ordinary agreement to purchase, chancery may decree specific performance, and upon a sale under foreclosure the purchaser may be put in possession by writ of assistance, and yet it has never been contended that the power of the court to grant relief according to its own pecuUar proceeding excluded the jurisdiction of the courts of law. The parties may sue at law for damages arising from the non-per- formance of the agreement to sell, and the purchaser at a fore- closure sale, may recover possession by an action of ejectment, not- Avithstanding another remedy is attainable in a court of equity. A stipulation for a re-sale in case of default of the purchaser to comply, and for his liability for the expenses and loss on the second sale, has long been in use as one of the usual conditions of sale. Sir Edward Sugden recommends that it never be omitted. 1 Sugden on V. & P 57 (39). It has always been regarded as a substantial security for the fulfillment of the agreement to pur- ^ec. 6.] EIGHTS GROWING OUT OF CONTRACT. 687 chase, on which an action at law is maintainable. In ,such action the measure of damages is the difference between the defendant's bid at the first sale, and the sum realized at the second sale, to- gether with the costs and expenses incident to the re-.sale. Ocken- den V. Henly, E. B. & E. 485; Cobb v. Wood, 8 Cush. 228; Web- ster V. Hoban, 7 Cranch, 399. The difference in price on the re- sale is, in law, so far regarded as a liquidated debt as to be prov- able as such tn bankruptcy. Ex parte Hunter, 6 Ve.s. 94. The only cases I have been able to find in which the right of an officer, selling under judicial proceedings, to sue the purchaser at law on a condition of this kind, has been questioned, are Wood V. Mann, 1 Sumner, 319, and Miller v. CoUyer, 36 Barb. 250. In Wood V. Mann, Justice Story expresses the opinion that a court of law would not entertain jurisdiction of such a suit, wliere the sale was made under a decree of a court of equity. The subject under consideration was the power of a court of equity to enforce, by summary process, a security voluntarily given in a court by a person who, on his own application, was substituted in the place of the purchaser, on which an order was made that the person so substituted pay the purchase money within a specified time. The opinion on this head was merely obiter, and was founded on the supposed inability of a court of law to ascertain and measure the extent of the damages. The apprehension that an adequate rem- edy could not be afforded in a court of law, on the agreument to purchase, is entirely without foundation. A court of law will give as damages in such a suit precisely the same measure of re- dress as bj' the modern practice is attainable in equit}-. In Miller V. Collyer, the court held that a memorandum at the foot of the conditions of a sale, made by a sheriff, under foreclosure pro- ceedings, stating that the party had bought at a certain price, and that he agreed to comply with the conditions, and signed by him, was a mere submission to the authority of the court in which the decree was had, and not a contract, either with the sheriff or the plaintiff in the suit, and that, therefore, no action could be main- tained upon it. The argument by which this conclusion was reached, was that the memorandum lacked the essential elements of a contract, not only in parties, but also in mutuality and con- sideration. Inasmuch as the legal results of a purchase at a sher- iff's sale are an obligation on the part of the officer to convey, and on the part of the purchaser to accept a conveyance and pay the purchase money, it is difficult to perceive wherein the undertaking is deficient in either mutuality or consideration. The duty of the officer to make conveyance of the lands on his acceptance of the bid of the successful bidder, and his power to transfer to the pur- chaser the title he is selling, are as much a consideration as his ability to pass the property in chattels on the sale of personal property. The only difference is, that the property in chattels passes by the sale, whereas on a sale of lands a deed is necessary to convey the legal title. The rights of the buyer, in both in- stances, are fixed when the bid is accepted-. AVhatever else is 688 BIGHTS GEOWING OUT OF CONTRACT. [Ch. 8. necessary to complete the transaction is merely a compliance with the forms of passing the title to lands. Bach party, it is admitted, may compel performance by the other by the inter- vention of the court out of which the process issued. A more decided illustration of consideration and mutuality in a contract can scarcely be found. The same elements of mutuality and con- sideration are present in a sale by an officer having power to sell, and ability to make conveyance, as attend a sale by an owner at public auction. The practice of the court of chancery, by summary process, to compel the purchaser to complete the purchase, is founded on the assumption of a contract on his part to that eifeet. This is ap- parent from the observations of Lord Cottenham, in Harding v. Harding, 4 M. & Oraig, 514. The notion that the contract is with the court, is too fanciful to merit much consideration. It is regarded as such a contract as may be made the ground for a bill for specific performance in the name of the officer. Ely v. Per- rine, 1 Green's Ch. 396; Browne v. Ritter, 11 C. E. Green, 456. In Miehener v. Lloyd, 1 C. E. Green, 41, Chancellor Green treats a claim against a purchaser at a sale by commissioners in partition, selling under an order of the court for a deficiency at a second sale, as a claim for damages sustained by the breach of the con- tract contained in the conditions of sale. He also held that the contract was with the commissioners; that they alone had the right to enforce it, and that the yemedy was properly in a court of law by action on the contr^-ci;. In Shinn v. Roberts, Spencer, 435, the action was at law, by commissioners in partition against a purchaser not complying with the conditions of sale, to recover the difference in the price at the first sale and the second. The case was contested by able and experienced counsel. No point was made on the argument as to the ability of the commissioners to sue, and Carpenter, J., in the opinion of the court, declares that he had no difficiilty on the subject of the right of the com- missioners to maintain the action. In Cobb v. Wood, 8 Cush. 228, it was expressly decided by the supreme court of Massachusetts, that an administrator selling lands under a license of a probate court, might recover at law against a purchaser who bid in the property and signed the memorandum of sale, and then refused to comply : and that the sum recoverable was the difference in the price at the first and second sales. In Sanborn v. Chamberlin, 101 Mass. 409, an officer, selling under an execution at law-, was allowed to recover of a purchaser on his contract to purchase, the purchase money, the conveyance having been tendered but not accepted. There is no difference between a sale by a sheriff under an execution ou;t of chancery on a foreclosure, and that of an officer or individual selling under any power or authority not coupled with an interest, such as a sheriff selling under an execu- tion at law, auditors in attachment, commissioners in partition, guardians, executors or administrators selling under an order of the court, and executors making sale under a power in a will. To Sec. 6.] EIGHTS GROWING OUT OF CONTRACT. 689 deny the right to sue at law on the contract of purchase in these enumerated cases, would, in manj^ instances, be practically a de- nial of any remedy against a defaulting purchaser who sees fit to recede from his bargain. In some, if not in all of these cases, there is no power in any court to enforce the purchaser's agree- ment by summary process. If, in these cases, actions at law may be brought on the conditions of sale, no reason can be suggested why a similar remedy may not be had on the conditions of a sale under the process of the court, of chancery. That relief may be had by another method, and in another court, does not exclude the jurisdiction of courts of law. The remedy in that form, by action, is frequently less expensive, and more convenient than in the court of chancery, and the measure of compensation as indemnity is the same in both courts. In such an action, the defendant is subjected to no inconveniences as to defenses which would not equally lie in the way of a purchase at a sale under common law process. The purchaser cannot com- plain that there is a more summary method of dealing with him in the premises, and of compelling him to abide by his contract. Browne v. Ritter, supra. The suggestion that the sale to the defendant might have been disapproved of by the chancellor, and that the sheriff, on his own motion, may be prosecuting this suit, is entitled to no weight. If the sale was improperly conducted, to the prejudice of the de- fendant as purchaser, he might, by summary application to the chancellor, have been discharged from his bid. And if the sher- iff is prosecuting this suit for improper purposes, by consent of all those of whose interest he is the representative, it will be stayed by the court. Nor will any embarrassment arise as to the dis- position of the money that may be recovered in this action. The sheriff is the representative and trustee of the persons interested in the process under which he makes the sale, the complainant, the other encumbrancers, and the owner whose propei-ty he is empowered to sell. So strictly is he regarded as a trustee, that he has no power to relieve a purchaser from a sale which is ad- vantageous to the parties to the suit, or yield any substantial right affecting either the complainants or the defendant. It was so held by Chancellor Zabriskie in Shann v. Jones, 4 C. E. Green, 251. The money recovered in this suit will be money made under the process in his hands. It will represent, when taken with the sum obtained at the second sale, what the officer has realized out of the property, and what he would have received immediately, if the defendant had kept his engagement. It was said by Carpenter, J., in Shinn v. Roberts, in speaking of a similar suit by commis- sioners in partition: "The money recovered, after deducting ex- penses and a reasonable remuneration, will be the money of the parties in interest, and its payment over would be enforced by the proper tribunal." In Cobb v. Wood, the action was held to be maintainable by an administrator selling under an order for the payment of debts, though the amount obtained at the second sale Remedies — 44. — 690 RIGHTS GROWING OUT OP CONTRACT. [Ch. 8. -^^as sufficient to pay all the debts and the costs of administration ; the recoverj' being for the benefit of the widow and heirs of the deceased. The action was well brought, and the nonsuit should be set aside, and a new trial ordered ; costs to abide the event. In the principal case It will be observed that the sheriff did not sell under an execution, but was acting in the capacity of a commissioner of the court of chancery. In North Carolina it is held that when a sheriff sells under execution and the purchaser fails to pay for the property, the sheriff can maintain a separate action for the price and cannot pro- ceed by motion in the cause; because the court has no privity or connec- tion with the purchaser, as is the case when the court sells through a commissioner. If the sheriff re-sell the property, as he may do, he thereby releases the purchaser at the first sale. McKee v. Llneberger, 69 N. C. at pp. 239-241. When the purchaser at a judicial sale — a sale by a commissioner ap- pointed by a court in a civil action or special proceeding — fails to com- ply with his bid, or to pay a note, etc., given for the whole or a part of the purchase money, the remedy against him is confined to a motion In the cause so long as the cause is pending; but after the cause is closed by final judgment, a separate and independent action may be maintained, it seems. So where the bid was raised and at a re-sale the property brought less than at the first sale, a separate action against the person who raised the bid, to recover the difference, was dismissed because the only appropriate remedy was by motion in the cause. Marsh v. Nimocks, 122 N. C. 478, 29 S. E. 840; see also Lord v. Beard, 79 N. C. 5; Causey v. Snow, 120 N. C. 279, 26 S. E. 775, in which last case a separate action was sustained on the ground that final judgment had been entered and the cause ended. That a re-sale may be ordered by motion in the cause and the delinquent purchaser held for any loss consequent thereon, and that such re-sale will be ordered at the instance of a surety on the notes given by the original purchaser for the price, is held in Petillo, ex parte, 80 N. C. 50; In re Yates, 59 N. C. 212. The practice in proceedings by motion in the cause is indicated in these cases. That the remedy by motion in the cause is likewise the proper one in sales under special proceedings before the clerk, see Mauney v. Pemberton, 75 N. C. 219. For the law in extenso on the subject embraced in this section, see 17 Am. & Eng. Bnc. Law 1025; 24 Cyc. 52. As to the writ of assistance, see ch. 3, § 21, ante. That a separate action will not, ordinarily, be al- lowed in any case when adequate relief may be had by a motion in the cause, see Herman v. Watts, 107 N. C. 646, 12 S. E. 437, inserted at ch. 9, § 3, post; Falson v. Mcllwalne, 72 N. C. 312. See "Judicial Sales," Cen- tury Dig. §§ 50-56; Decennial and Am. Dig. Key No. Series §§ 26-29. Sec. 7. Actions of Deceit and of Deceit and False Warranty. LASSITER V. WARD, 33. N. C. 443. 1850. Remedies Ex Contractu and Ex Delicto on False Warranty. Case and Assumpsit on False Warranty. Counts in Deceit and Warranty Joined. [Action on the Case in tort. Two counts: (1) In deceit for selling plaintiff an unsound horse and knowingly and falsely representing him to be sound; (2) For a false warranty of the soundness of the horse. Plea, not guilty. The proof was, that the horse was warranted to be sound, but was unsound. Upon this the defendant insisted that plain- tiff could not recover because there was no proof that the defendant knew that the horse was unsound. The judge ruled that plaintiff could recover on the second count without proving the scienter. Verdict SrC. 7'.] RIGHTS GROWING OUT OF CONTRACT. 691 against defendant, who moved In arrest of judgment. Judgment against defendant, and he appealed. Affirmed.] RuppiN, C. J. Though one would expect assumpsit to be brought on a warranty of goods, as well as any other parol con- tract, yet it is, comparatively, a recent thing that it was brought in such cases. Its propriety seems to have been questioned as late as the case of Stewart v. "Wilkins, Doug. 18 ; and it cannot be said to have been judicially settled earlier, though the action had sometimes been brought. It was questioned on the ground, that the action on the ease in tort was the established remedy, and therefore the proper one. It was, however, held that either of the actions would lie upon an express tvarranty. Afterwards it was attempted to give another turn to the matter in the opposite direc- tion, namely, by contending that assumpsit was the peculiar remedy on a false warranty, and that the declaration could not be in tort unless it alleged a scienter; which was as much as to say, that the action on the case would not lie on the warranty, but only on the cheat. Williamson v. Allison, 2 Bast, 446. But there were so many precedents of actions in tort for a false warranty, as to show clearly that it had been formerly the common remedy, if not the only one in use, and to induce the judges to sustain it. It was, accordingly, there held that the declaration might be in tort without alleging a scienter, and, if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is, that when there is a warranty, that is the gist of the ac- tion, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly half a century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties. 1 Chit. PI. 429, 956; 2 Chit. PI. 279. There is no doubt as to the propriety of joining the two counts ; for it is an action on the case, and the counts, being both in tort, are compatible. If it were otherwise, it would not be ma- terial in this case, as the evidence applied to the second count, and the instructions to the jury referred to it alone, and there- fore the verdict might be amended by entering it on that count . only. West v. Ratlidge, 15 N. C. 31. See "Action," Century Dig. § 357; Decennial and Am. Dig. Key No. Series § 41; "Sales," Century Dig. § 1207; Decennial and Am. Dig. Key No. Series § 425. CARTER V. GLASS, 44 Mich. 154, 6 N. W. 200. 1880. Trespass on the Case fer Deceit, or Assumpsit on the Warranty, at the Option of the Plaintiff. Alleging and proving the Scienter. [Trespass on the case for damages. Defendant brings error. Af- firmed. One count in the declaration alleged, in substance, that the plaintiff and the defendant exchanged horses at defendant's special request, "the defendant then and there warranting the horse to be sound and all right 692 RIGHTS GBOWING OUT OP CONTRACT. [Cll. S. in every way, then and there falsely and fraudulently sold and ex- changed the same with the plaintiff, . . . said plaintiff confiding in the said warranty . . delivered his horse to the defendant. Whereas in truth and in fact at the time of the making of the said false warranty . . . the horse of the defendant was not sound . . but, on the contrary, then was and still is unsound and hath become of no value; . . . and the plaintiff also by means of the premises hath lost and been defrauded of the use of said horse; . . and so the said defendant in said sale and exchange falsely and fraudulently de ceived and defrauded the plaintiff," etc. The judge held this to be a good count in tort and permitted plaintiff to recover on it as such. His ruling is approved.] CoOLEY, J. But one question is presented by this record, namely, whether the count in the plaintiff's declaration, on which he was permitted to recover in the court below, was a count in tort or upon a warranty. The court below treated this as a count in tort, and allowed the plaintiff to recover as upon a rescission of the contract. The de- fendant insists that it is a count in assumpsit, and in affirmance of the contract. It was decided in Beebe v. Knapp, 28 Mich. 53, that an action on the case may be maintained for false representations in the sale of property whereby the vendee was deceived and de- frauded, even though the vendor was not aware of the falsity of the representations when he made them. But there is no doubt the representations in such a case may be treated as warranties, and assumpsit brought at the option of the vendee. Hawkins v. Pemberton, 51 N. Y. 198 ; Wheeler v. Read, 36 111. 81 ; McGregor V. Penn. 9 Yerg. 74 ; Henshaw v. Robins, 9 Met. 83 ; Burge v. Stro- berg, 42 Ga. 88 ; Stone v. Covell, 29 Mich. 359. As the declaration in either case must set out the facts, there must necessarily be considerable similarity, and this is not the first instance by many in which a count meant to be in ease for the deceit has been mis- taken for one in assumpsit. But the leading case of Williamson V. Allison, 2 East, 446, fully sustains the ruling of the court be- low. It was there said by Lord Ellenborough that ' ' the warranty is the thing which deceives the buyer, who relies upon it and is thereby put off his guard. Then, if the warranty be the material averment, it is sufficient to prove that broken to establish the de- ceit, and the form of the action cannot vary the proof in that re- spect. The same case decides that it is not necessary either to aver or prove the scienter, and to render the case more completely like the present, in principle, the declaration there, as here, failed to aver an offer to return the property, in the sale of which the tort was committed. The doctrine of that case is familiar law in this country. Baman v. Buck, 3 Vt. 33; West v. Emery, 17 Vt. 583; Johnson v. McDaniel, 15 Ark. 109; Hillman v. Wilcox. 30 Me. 170 ; Newell v. Horn, 45 N. H. 421 ; Ives v. Carter, 24 Conn. 392. An examination of Ross v. Mather, 51 N. Y. 108, which questions the soundness of Williamson v. AUison, will show that the criticism was based on a misapprehension of the point decided. All the errors relied upon in this case depend upon the one no- ticed. The judgment was right, and must be affirmed, with costs. Sec. 7.] RIGHTS GROWING OUT OP CONTRACT. 693 See "Action," Century Dig. § 167; Decennial and Am. Dig. Key No. Series § 27. HOBBS V. BLAND, 124 N. C. 284, 287, 32 S. E. 683. 1899.. Joinder of Deceit and False Warranty Under the Code Practice. The Scienter, When Material. When Deceit and False Warranty May Be Set Up as a Counterclaim. [Action by the mortgagee of cliattels to recover the mortgaged prop- erty from the mortgagor. The defendant pleaded, by way of counter- claim or recoupment, that the mortgage was given to secure the price of a horse which he bought from the plaintiff and which the plaintiff warranted "to be sound, but which was unsound, and for that reason had been returned by the defendant to the plaintiff. Judgment against the plaintiff, and he appealed. Reversed on a point immaterial to the question now under consideration. Only a part of the opinion is here inserted.] FuRCHES, J. . The defendant, by his answer, alleges a breach of warranty, and deceit. The allegation of deceit is not very distinctly stated, but we will treat it as sufficiently stated to be used as a ground of defense, if established. These defenses — - false warranty and deceit — are both ex delicto, but they might be joined in one action; and, as they might be joined in one action (Bullinger v. Marshall, 70 N. C. 520), they may be joined in the defendant's answer, which is but a cross action. To entitle the defendant to damages upon the allegation of false warranty, it is not necessary that he should show the scienter.^ It is sufficient if he shows a warranty, and breach of the warranty. If there was no warranty, and defendant relies on the allegation of deceit, he must then show the scienter. As these defenses are ex delicto, and not on contract, they could not be set up by way of counter- claim, or recoupment, if they had not originated out of the same transaction, or cause of action upon which defendant is sued ; but, growing out of the transaction upon which the action is based, they may be so pleaded and set up. Benton v. Collins, 118 N. C. 196, 24 S. E. 122. ... See "Sales," Century Dig. §§ 1214, 1215; Decennial and Am. Dig. Key No. Series § 428. INGE V. BOND et al., 10 N. C. 101. 1824. Pure Deceit Distinguished from False Warranty. [Action on the Case for damages resulting from the sale of an un- sound slave to the plaintiff by the defendant. The substance of the declaration appears in the beginning of the opinion. The judge charged that the plaintiff must satisfy the jury that the defendants knew of the unsoundness of the slave and failed to disclose it at the time of the sale. Verdict against one of the defendants. Bond, and a judgment against him, from which he appealed. AfBrmed.] Taylor, C. J. The first count in the declaration charges that the defendants, knowing the slave to be unsound, by a false af- 694 RIGHTS GROWING OUT OP CONTRACT. [Cll. S. firmation of his soundness procured a sale of the slave to the plaintiff. The second charges that the defendants advised the plaintiff to buy the slave, and, falsely affirming him to be sound, procured the plaintiff to buy him, whereas they knew the slave to be unsound. In both counts the false affirmation is stated to be the means by which the plaintiff was induced to make the bargain, and the making that affirmation ivith a knowledge to the contrary, whereby the plaintiff was injured, constitutes the cause of action. The action is clearly conceived in case, on tort, and the declaration as strongly marked with those features, as in the case of Pasley v. Freeman, 3 T. R. 51, the foundation of which is fraud and deceit in the defendant and damage to the plaintiff. The affirmation, as stated in the declaration, is not laid in the way of a contract, the breach of which has brought daniage on the plaintiff', but as a deceit practiced upon him, whereby he was in- duced to make the contract. In some cases it is true that an affirmation as to the title of a chattel, when the seller is in posses- sion, -will be considered as a warranty, for as to the title the law itself implies a warranty: and even w-ithout such information, if a man sell goods as his own and the title prove deficient, the buyer may recover satisfaction. 2 Blk. 451 . But as to the soundness of goods, an affirmation does not amount to a warranty, unless it appear on the evidence to have been so intended. In declaring on a warranty, the charge is laid in assumpsit, either warrantizando vendidit, or he undertook and faithfully promised ; but in this ease there is nothing like a promise and undertaking. And what shows beyond all controversy that the action was not intended to be on a warranty is that a bill of sale was given without a war- ranty, and that Bond expressly refused to enter into one. That no contract existed is further evident from this, that whatever was said concerning the soundness of the slave was before the sale, and the true contract of the parties was reduced to writing by the bill of sale, to which no other terms or stipulations can be added. "I hold,-" says one of the judges, "that if a man brings me a horse, and makes any representation whatever of his quality and soundness, and after-wards we agree in writing for the purchase of the horse, that shortens and corrects the representations; and whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case. ' ' 4 Taunton, 786. But if there is any fraud in the case, that cannot be done away by the contract, and the buyer may, notwithstanding, bring his action on the case, which is the only one that could be brought in this case. It, therefore, seems to me that those authorities do not apply which go to show that a breach of contract cannot be con- verted into a tort, for in all of them there was a clear contract, and in the leading ones the defendants had a joint ownership in the property. I do not think it was in the least degree necessary that it should be left to the jury to say whether the aifirmation stated in the declaration was made by the defendant or not, since it was merely inducement and introductory to the gravamen. S(C. 7'.\ RIGHTS GROWING OUT OF CONTRACT. 695 whifh is the fruudulent concealment nf a defect in the slave; and, generally, whei c a person is sued in tort for knowingly selling an unsound article, the charge is laid either with a false affirmation of the soundiies.s. or that the defendant sold it for and as a sound article, or with a false warranty, all which terms import the same thing, and are never held as making a contract the gist of the action. As the jury have verified the charges in the declaration, 1 am of opinion that the plaintiff is entitled to recover, and that there ought not to be a new trial. See "Fraud," Century Dig. §§ 27, 44; Decennial and Am. Dig. Key No. Series §§ 31, 49; "Sales," Century Dig. § 1207; Decennial and Am. Dig. Key No. Series § 425. CHATHAM FURNACE CO. v. MOFIfATT, 147 Mass. 403, 18 N. E. 1G8. 1888. Deceit for a False Statement Which Defendant Did Not Know to Be False, Nor Did He Know it to Be True. [Tort for alleged false and fraudulent representations whereby plain- tiff was induced to lease and buy certain property. Judgment against the defendant, who alleged exceptions. Exceptions overruled, and judg- ment affirmed. The defendant held a lease of a mine in which there was iron ore. The mine was filled with water and debris. The defendant made certain representations as to a great quantity of ore being in the mine ready to be taken out as soon as the water and debris were removed. Such ore was in existence, but it was not within the limits covered by the de- fendant's lease. The defendant took upon himself to assert, as of his own knowledge, that this large mass of ore was in his mine. These representations would have been true, if the lines in a certain survey and plat of the mine had been correct; but they were not correct. The defendant knew that what purported to be a survey — upon the basis of which he made his representations^ — was not in all respects an actual survey, and that the lines had not been verified, but were merely as- sumed. He did not disclose this to the plaintiff, but made the asser- tion about the ore, as of his own knowledge, and exhibited the survey in support of his assertion, knowing that the lines had not been verified. An actual survey would have disclosed the fact that the mass of ore lay outside of his boundaries.] C. Allen, J. It is well settled in this commonwealth that the charge of fraudulent intent, in an action for deceit, may be main- tained by proof of a statement made as of the party's own knowl- edge, which is false ; provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge ; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud con- sists in stating that the party knows the thing to exist when he does not know it to exist ; and, if he does no know it to exist, he must ordinarily be deemed to know that he does not. Porgetful- ness of its existence after a former knowledge, or a mere belief of its existence, will not warrant or excuse a statement of actual knowledge. This rule has been steadily adhered to in this com- monwealth, and rests alike on sound policy and on sound legal 696 RIGHTS GROWING OUT OP CONTRACT. [CJl. 8. principles. Cole v. Cassidy, 138 Mass. 437; Savage v. Stevens, 126 Mass. 207; Tucker v. White, 125 Mass. 344; Litchfield v. Hutchinson, 117 Mass. 195 ; Milliken v. Thorndike, 103 Mass. 382 ; Fisher v. Mellen, Id. 503 ; Stone v. Denny, 4 Mete. 157 ; Page v. Bent, 2 Mete. 371; Hazard v. Irwin, 18 Pick. 95. And though this doctrine has not always been fully maintained elsewhere, it is supported by the following authorities, among others: Cooper v. Sehlesinger,"lll U. S. 148, 4 Sup. Ct. Rep. 360; Bower v. Fenn, 90 Pa. St. 359 ; Brownlie v. CampbeU, L. R. 5 App. 953, by Lord Blackburn; Mining Co. v. Smith, L. R. 4 H. L. 79, 80, by Lord Cairns ; Slim v. Croucher, 1 De Gex, F. & J. 518, by Lord Camp- bell. See also Peek v. Derry, 59 L. T. (N. S.) 78, which has been published since this decision was announced. . . . See further as to statements made without a? knowledge that they are true, 6 L. R. A. 149; 20 Cyc. 24; Bishop, Non-Cont. L. §§ 312-343; also Hamrick v. Hogg, 12 N. C. 350, which says that it is not sufficient that the representation be false in point of fact, but that "the defendant must be guilty of a moral falsehood — he must know or Relieve it to be false, or, what is the same thing, have no reason to believe it to be true." This case has been several times approved, see Munroe's Notes and Wo- mack's Digest. "The action for deceit rests in the intention with which a representation is made, or a fact not mentioned. It is not sufficient that the representation made should be calculated to mislead — for that may be done by the most honest communication — but the representation must be made vHth the intent to deceive. Moral turpitude is necessary to charge a defendant in an action for a deceit." Stafford v. Newsom, 31 N. C. at p. 510. In Aldrich v. Scribner, 154 Mich. 23, headnote 1, 117 N. W. 581, it is said: "In this state, in order to constitute fraud, it is not necessary that the person making the statement should either know that it is un- true or be recklessly and consciously ignorant whether It be true or untrue, but it is sufficient if the representation be false in fact, and the person making it be a party to the contract and profits by the other's loss." In the life of Lord Kenyon, Lord Campbell says this: "In Haycraft v. Creasy, Lord Kenyon was very properly overruled by his brother judges, and the mortification which he suffered was supposed to have occa- sioned his death. The action was brought by a shopkeeper against a credulous old gentleman for having given a deceitful representation of the character and circumstances of a young lady of the name of Robin- son, wherebj'' the plaintiff had been induced to sell to her a large quan- tity of goods on credit, the price of which he had lost. The defendant having, like many others, been deceived by her arts, and really believ- ing that what he said was true, told the plaintiff that she was a lady of great fortune and heiress of the estate of Fasoally, in the county of Perth, and that she was not only respectable herself, but nearly con- nected with some of the highest families in Scotland. In truth she was a mere adventuress, and swindled all that would trust her. Law, for the defendant, contended that the action could not be maintained, as there was no mala fides to support it, and to make him liable without actual deceit would be to treat him as surety for Miss Robinson without any written guarantee. Lord Kenyon: 'The attorney-general relies on the statute of frauds. To this I shortly reply by saying that the statute of frauds has nothing to do with this case. The defendant is sued, not as surety for Miss Robinson, but for stating respecting her that which was not true, and which he had the means of knowing, and must be supposed to have known, was not true, whereby a damage has been suf- fered by the plaintiff. If the present action cannot be suported, I have Sec. 7.] RIGHTS GROWING OUT OP CONTRxVCT. 697 now for twelve years been deceiving the people of this country. Am I now, when perhaps from years the progress of my intellect may be ret- rograde, to unsay what I have said so often? Where can I go to hide my head if this point shall now be decided otherwise? What can I say to the people of this country? The ground I go upon is this: Did the de- fendant assert to be true that which he did not know to be true? This 1 consider suificient evidence to support the charge of fraud. It may not amount to moral turpitude, but it is, in my opinion, sufficient to consti- tute legal fraud, and legal fraud is, in my opinion, enough to support an action of deceit.' Grose, Lawrence, and Le Blanc, Js., however, on the assumption that the defendant was a dupe, clearly held that he could not be made liable in this form of action, which supposed that the defendant had stated what he knew to be false, or that, from some bad motive, he had stated as true facts which were untrue, and the truth of which had not been investigated. As his brethren proceeded seriatim in this strain, the chief justice's face showed the most terrible contortions; and when they had finished he exclaimed: 'Good God, what injustice have I hith- erto been doing! What injustice have I been doing!' A gentleman who witnessed the scene, says: 'It was visible to every person in court that this ejaculation was not uttered in the penitent voice of regret for any injustice which he might unconsciously have done from a mistake of the law, but in the querulous tone of disappointed pride, from finding that the other judges had presumed to think for themselves, and to question the supremacy of his opinion.' " 4 Campbell's Lives C. J., 127- 129. Compare this statement with the principal case and the authorities cited in this note. See further as to what constitutes an actionable misrepresentation, or deceit, in the eyes of the law, Huffcut and Woodruff's Cases on Con- tracts, 298-302; Mcintosh, Cont. 303-304, and note, where reference will be found to the principal authorities on the subject. See 7 L. R. A. (N. S.) 646, 18 lb. 379, and notes (statements made without knowing whether they are true or not); 6 lb. 872, and note (when deceit lies against officers of a corporation for false statements in reports required by statute — e. g. bank statements). See "Fraud," Century Dig. § 5; Decennial and Am. Dig. Key No. Series § 13. BROWN V. GRAY, 51, N. C. 103. 1858. Latent and Patent Defects. Caveat Emptor. Suppressio veri. Sug- gestio falsi. Scienter. [Action on the case for deceit in the sale of a slave. The sale was at auction. The slave was unsound at the time of the sale and the defend- ant knew it. The defendant insisted that the plaintiff could not recover on these facts, but must show that defendant made false representations or resorted to some device by which to conceal the slave's unsoundness. The judge ruled otherwise and charged that the plaintiff could recover upon the facts above stated. Verdict and judgment against the defend- ant, and he appealed. Affirmed.] Pearson, C. J. In the sale of a chattel, the rule of our law is caveat emptor, and if the thing be unsound, to entitle the pur- chaser to maintain an action, he must prove either a warranty of soundness or a deceit. In regard to a deceit, the distinction is : Where the unsoundness is patent, that is, such as may be discovered by the exercise of or- dinary diligence, mere silence on the part of the vendor is not sufficient to establish the deceit, although he knows of the un- 698 RIGHTS GROWING OrT OP CONTRACT, [CIl. 8. soundness, because the thing speaks for itself, and it is the folly of the purchaser not to attend to it. So that, in such a case he will not be heard to say he was deceived, unless the vendor made a false statement, or resorted to some artifice in order to prevent an examination, or to hide the unsoundness, so as to make the ex- amination of no avail. Where the unsoundness is latent, that is. such as could not be discovered by the exercise of ordinary dili- gence, mere silence, on the part of the vendor, is sufficient to es- tablish the deceit, provided he knows of the unsoundness; for, as the thing is not what it appears to be. and diligence does not en- able the purchaser to discover its unsoundness, -he is deceived un- less the fact is disclosed ; so that, in such a case, \vithout what the law considers laches on the part of the purchaser, the deceit is accomplished by the supprcssio vcri. The first proposition, that, in regard to a patent unsoundness, to make out a deceit there must be proof of the scienter, and a suggestio falsi, is conceded on all hands. The second, that in respect to a latent unsoundness, proof of the scienter and a suppressio veri will be sufficient, we consider equally -well set- tled, by the reason of the thing, and by the cases in our court; Cobb v. Fogleman, 23 N. C. 440 ; Case v.'Edney, 26 N. C. 93. The former was for deceit in the sale of a female slave, who had a latent disease — cancer in the womb, but at the time of the sale was a stout, vigorous looking woman. The defendant was silent in respect to her disease. The judge, in the court below, in- structed the jury, that to entitle the plaintiff to recover, he must prove, 1st, that the unsoundness existed at the time of the sale ; 2nd, that the defendant knew of, or had reason to believe its ex- istence ; 3rd, but if these facts were proved, if the plaintiff also knew of the unsoundness, or had reason to believe it, he could not recover; and he then instructed the jury that there was no evidence on the last point. In this court the positions of law were approved, and, indeed, were not called in question, being taken by the profession as settled; and the decision was put, not on •whether there was evidence on the last point, but on whether there was evidence of the scienter on the part of the defendant. The latter was for a deceit in the sale of a mare at auction by a trus- tee. The mare had a latent unsoundness, although on the day of sale she appeared to be well. The defendant, Marvill Edney, the maker of the trust, was "present at the sale, but took no part in it, and said nothing, one way or the other, as to the property." There was proof that he knew of the unsoundness. The evidence was contradictory as to the scienter on the part of the other de- fendant, the trustee. The judge, in the court below, held "that as the legal title had passed out of the defendant, Marvill, he was not accountable as an owner would be, who procured an auction- eer to cry his property, and stood by in silence." As to the other defendant, the court charged, that "although he acted as trustee in making the sale, yet, like all other persons who sold, he was bound to act honestly, and to disclose defects if he believed them Sec. 7.] RIGHTS GROWING OUT OP CdXTRACT. 699 to exist. It was then left to the jury, whether the mare was un- sound, and whether the defendant knew it — if so, as he failed to state the circumstances, he was liable in dama^-es." In this court, the positions of law, in reference to the deceit, were approved, but it was held that the defendant, Marvill Edney. although the legal title passed out of him, was liable for the deceit. In the conclu- sion of the opinion, the court say: "It will not be understood that we think the mere silence of a debtor, whose property is sold un- der execution, would amount to a fraud; for that is a proceeding in invitum ; the sale is exclusively the act of the law. ' ' Nothing could show more conclusively that this doctrine was considered as settled, both by our courts and the profession, than the manner in which it is treated in these two cases ; and after the elaborate argument of Mr. Boyden, we are satisfied that it is sus- tained by the weight of authority. The class of cases, Mellish v. Matteux, Peake N. P. 115; Baglehole v. Watters, 3 Camp. 154; Pinckering v. Dawson, 4 Taunt. 779, etc., where the property was sold "with all faults," is not in point. Nor the class of cases, Laidlaw v. Organ, 2 Wheat. 178; Bench v. Sheldon, 14 Barb. 66, etc., where extrinsic circumstances, affecting the price of the article, exist, but in regard to which the means of intelligence are equally accessible to both parties, such as the conclusion of peace in 1815, between England and the United States, and the passages to be met with in some of the best writers, which seem to conflict, are all to be attributed to the fact that the distinction between a patent and a latent unsoundness in a thing, was not kept in view. These questions of laiv present no difficulty, and from the manner in which the statement of the case is made up. upon the defend- ant's exception, the judgment must be affirmed. The defendant's counsel contended, "that admitting that the slave was vinsound. and that the defendant knew it, the plaintiff could not recover, for that, in order to charge the defendants, he must prove, either that they made fraudulent misrepresentation.'!, or resorted to some device by which to conceal the unsoundness." and prayed the court so to instruct the jury. This proposition is not true in its generality. If the unsoundness was patent, it is true. If the unsoundness was latent, it is not true. The case does, not show whether it was patent or latent, and it follows, that it was not error to refuse to give the instruction prayed for. In other words, it does not appear from the defendants' exceptions, whether the court below erred or not; therefore, there is no ground upon which this court can reverse the judgment. Judg- ment affirmed. For actions of Deceit arising out of sales of real estate, see Fox v. HaugMon, 85 N. C. ait p. 173; Walsh v. Hall, 66 N. C. 233; Gatlin v. Harrell, 108 N. C. 485, 13 S. E. 190; May v. Loomis, 140 N. C. 350, 52 S. E. 728, inserted post in this section; Btheridge v. Vernoy, 70 N. C. 713, inserted at ch. 3, § 17. In several of these cases the doctrine of moral turpitude is reiterated. It is immaterial whether the fraud consist in a suppressio veri or a suggestio falsi. Lunn v. Shermer, 93 N. C. at p. 169, inserted post in this section. See "Fraud," Century Dig. § 15; Decennial and Am. Dig. Key No. Series §§ 15-170. 700 RIGHTS GROWING OUT OF CONTRACT. [Ch. 8. WEAVER V. WALLACE, 9 N. J. L. 251. 1827. Damage Must be Alleged and Proved. [Wallace sued Weaver before a justice of the peace in an action of Trespass on the Case, alleging; That he purchased some wood from Weaver; that the wood was standing on land which Weaver pretended to own, while Weaver knew that he had no such right; that Weaver "falsely and fraudulently sold the wood to the plaintiff for $6.25 then and there paid, and falsely and fraudulently deceived plaintiff to his damage $60." The justice gave judgment against Weaver, and this judg- ment was affirmed in the court of common pleas. Weaver then carried the case to the supreme court by certiorari. Reversed.] EwiNG, C. eT. The state of demand sets forth no legal cause of action. The plaintiff does not show that any injury was done to him. It may be, for aught that appears in the state of demand, that he has turned the wood into coal, sold it, and put the money in his pocket. He cannot recover merely for a false affirmation. On a warranty of title, if there was one, the purchaser could not immediately turn round and sue the vendor, nor mitil some injury was sustained. Judgment reversed. See "Fraud," Century Dig. § 24; Decennial and Am. Dig. Key No. Series § 25; "Sales," Century Dig. § 799; Decennial and Am. Dig. Key No. Series § 283. LUNN v. SHBRMER, 93 N. C. 164. 1885. Measure of Damages in Deceit. What Constitutes Actionable Deceit. Latent and Patent Defects. Suppressio Yeri and Suggestio Falsi. Issues. What Constitutes Actionable Damage. [Action for deceit in the sale of a mule. Verdict and judgment against the defendant, and he appealed. AfBrmed. The complaint alleged: That the plaintiff was induced to purchase a mule from the defendant by the defendant's false and fraudulent rep- resentation that the "mule was sound as far as he knew;" that such rep- resentation was false, in that the mule at that time had the farcy or some other Incurable disease; and that the defendant well knew that fact at the time of the sale. The defendant answered admitting the sale and representation of soundness of the mule, but denying the other allegations. The following issues were submitted to the jury: "1. Was the mule sold by defendant to plaintiff unsound at the time of the sale? 2. Did the defendant repre- sent the mule to be sound as far as he knew? 3. Did he at the time know or have good reason to believe that the said mule was not sound? 4. How much damage is plaintiff entitled to receive for the unsoundness of said mule?" The plaintiff testified to the purchase of the mule and that he paid de- fendant $175 for It; that he had exchanged the mule with his father; that he did not warrant the mule's soundness, but told his father what de- fendant had represented to be the facts as to its soundness; that the disease appeared two or three weeks after he had' turned the mule over to his father; that his father had not threatened to sue him, but claimed damages from him on account of the mule's unsoundness. The defendant requested the judge to charge that the plaintiff could not recover damages, because his testimoney showed that he had sus- tained none. The judge refused this charge, but charged that the meas- ure of damages was the difference between the value of the mule it Sec. 7.] RIGHTS GROWING OUT OF CONTRACT. 701 Sflund at the time of plaintiff's purchase, and its value it unsound at that time. The jury responded in the affirmative to the first three issues, and to the fourth by assessing the plaintiff's damages at $175.1 Ashe, J. . . . The defendant excepted to the third issue, and offered as a substitute the following, to-wit: "If not sound at the time of the sale, did the defendant know of the unsoundness, and falsely and fraudulently represent him to be sound, with the intent to induce the plaintiff to buy?" We think there was no error in declining to submit the issue. The issues submitted to the jury were such as were legitimately raised by the pleadings, and such as entitled the plaintiff upon a finding in the afSrmative to recover such damages as he may show he has sustained. Fraud or deceit in the sale oi' a personal article may be perpii- trated eith(!r by false representations or by a concealment of un- soundness in the article. When the action is brought for a deceit by false representation, three circumstances must combiner ist, that the rejiresentation was false; 2d, that the party making it knew it was false ; 3rd, that it was the false representation which induced the contracting party to purchase. Broome Com. 348. But when there are no representations made by the vendor, a deceit may equally be practiced by his silence, but in such cases an important distinction must be observed. For whether a cause of action for deceit will arise from mere silence and a knowledge of the defects in the article sold, will depend upon the fact vv'hether the defect is patent or latent. In Brown v. Gray, 51 N. C. 103, the distinction is thus stated: "When the unsoundness is patent, that is, such as may be discovered by the exercise of ordi- nary diligence, mere silence on the part of the vendor is not suf- ficient to establish the deceit, although he knows of the unsound- ness, because the thing speaks for itself, and it is the folly of the purchaser not to attend to it." But "when the unsoundness is latent, that is, such as cannot be discovered by the exercise of ordinary diligence, mere silence on the part of the vendor is suf- ficient to establish the deceit," provided he knows of the unsound- ness. In this case it is not stated whether the disease of the horse is latent or patent, but as it is alleged that the horse had "farcy," or some other disease, we take it that it was a latent disorder, as there was no proof offered on the part of the defendant that the unsoundness was a patent defect and no error assigned in that particular. Brown v. Gray, supra. Upon this authority, the find- ing of the jury on the first and third issues would have been suf- ficient to show the deceit and entitle the plaintiff to a judgment thereon; for the finding on them established the facts that the mule was unsound at the time of the sale and that the defendant knew it. This was all that the plaintiff was required to establish by his proof. Whether there was a fraudulent intent on the part of the defendant in suppressing the fact found to be within his knowledge was a question for the jury, to be inferred from the facts and circumstances of the transaction. 702 EIGHTS GROWING OUT OP CONTRACT. [Ch. 8. But the jury also found in the second issue, that the defendant represented the mulo to be sound as far as he knew. The case of Ferebee v. Gordon, 85 N, C. 350, was a case very similar in its facts, and we think decisive of this case. There was evidence in that ease tending to show the unsoundness of the negro, who was the subject of tlie action, at the time of the sale, and of the de- fendant's knowledge of the fact, and it showed also the assertion of defendant that the negro was sound so far as he knew. The court held that if the statement made by the defendant as to the soundness was false within his knowledge, he was responsible for it as a false and fraudulent representation. So it is immaterial in our case whether the fraud was practiced by a suppressio veri or suggcstio falsi, he is equally responsible. The only other exception taken by the defendant was to the re- fusal of his honor to instruct the jury that the plaintiff, upon his own evidence, had sustained no loss and was entitled to no dam- si ges. The defendant is precluded by his ans.wer from contending that the plaintiff is not the party in interest. Therefore he is en- titled to recover such damages as may be the legal consequence of the fraud practiced upon him, which, as his honor held, was the difference between the value of the mule at the time of the pur- chase, if sound, and its value, if diseased, at that time, and it can make no difference what disposition the purchaser made of the mule afterwards — whether he practiced a fraud upon some one else and got more than the actual value of the mule, or gave him away. There are some cases where the evidence of the price ob- tained by the vendor has been admitted, not to establish the value of the property, but as a fact proper to be laid before the jury to aid them in assessing the damages. It is a fact the party may prove, but it may or ma.\' not assist them in the assessment of the damages. Houston v. Starnes, 34 N. C. 313. There is no error. Judgment affirmed. See 3 L. R. A. (N. S.) 465, and note for effect of resale by the war- rantee. See "Fraud," Century Dig. §§ 15, 60-62; Decennial and Am. Dig. Key No. Series §§ 15-17, 59. MAY V. LOOMIS, 140 N, C. 350, 52 S. E. 728. 1905. Elements of the Action of Deceit. Caveat Emptor. Vendor's Choice of Remedies. Rescission, ichen Allowed. Puffing One's Wares. Coun- terclaim. Measure of Damages. [Action by May against Loomls and Dobson on two notes, for $750 each, given in December, 1892. Defendants pleaded fraud practiced upon them in procuring the execution of the notes, and also set up such fraud and deceit, and the damages suffered by them in consequence thereof, as a counterclaim. There was evidence introduced by the de- fendants tending, as they insisted, to support this counterclaim. At the close of the evidence the judge refused to submit issues covering the counterclaim, and dismissed the counterclaim as on a judgment of non- suit. Judgment against defendants, and they appealed. Reversed. The answer admitted the execution of the notes sued on, and set up as Sec. 7.] EIGIITS GROWING OUT OF CONTRACT. 703 a defense and counterclaim, that the notes were given for the price of a saw mill plant and timber lands; that false and fraudulent representa- tions were made by plaintiff and his partner as to the quantity of tim- ber on the lands; that plaintiff stated that the quantity of timber which he represented to be on the land was arrived at by careful estimates; that defendants relied upon these statements and they were a material in- ducement to the purchase; that the statements were false, plaintiffs knew they were false, and made them fraudulently with intent to deceive de- fendants; that defendants were deceived thereby, and, in consequence thereof, made the purchase and executed several notes for the price; that all the notes had been paid except those sued on in this action; that the timber fell short of the quantity represented and the shortage amounted to $2,036.77. The plaintiff replied denying all fraud and deceit. There was testi- money tending to establish the allegations of the answer.] Hoke, J. Accepting the testimony favoring defendants' claim as true, and we are required so to accept it where a nonsuit i.s ■directed against the party who offers it, the facts disclose a clear case of deliberate fraud in which there appears every element of an actionable wrong — false representations as to material facts knowingly and wilfully made as an inducement to the contract, and by which the same was effected, reasonably relied upon by the ■other partj' and causing pecuniary damage. It is well established that the principle applies to contracts and sales of both real and l^ersonal property. The authorities are decisive and are against the ruling of the .iudge below as to defendants' counterclaim. "Walsh V. Hall, 66 N. C. 233 ; Houghtalling v. Knight, 85 N. C. 17; Lunn v. Shermer, 93 N. C. 164; Ramsey v. Wallace. 100 N. C. 75, 6 S. E. 638 ; Brotherton v. Reynolds, 164 Pa. St. 134, 30 Atl. 234. It is urged that the buyers in this case were negligent and on that account their claim for relief is barred; but not so. The parties were not at arm's length in reference to these representa- tions and did not have equal opportunities of informing them- selves. The only one of the defendants who had any experience in such matters essayed to make an examination of the property, hut broke down from weakness incident to his disease, and told the plaintiffs he would have to rely on their statements. Fur- ther, there was evidence tending to show artifice used to induce the buyers to forbear making inquiry about the matter. In 14 Am. & Eng. Enc. (2d ed.), 123, we find it stated: "In no case can a person escape responsibility for representations on the ground that the other party was negligent in relying on them, if, in addition to making the representations, he resorted to artifice which was reasonably calculated to induce the other party to forego making, inquiry." Our decisions are to like effect Walsh V. Hall, supra; Hill v. Brower, 76 N. C. 124; Blacknall v. Rowland, 108 N. C. 554, 13 S. E. 191 ; s. c, 116 N. C. 389. 21 S. E. 296. Again, it is contended that these representations were not as to facts, but were matters of opinion, and we are cited to a num- ber of authorities as supporting the plaintiff's position — Pagan v. TOi RIGHTS GROWING OUT OF CONTRACT. [Cli. 8. Newsom. 12 X, C. 20; Saunders v. Hatterman, 24 N. C. 32;-Lytle V. Bird, 48 N. C. 222; Credle v. Swindell, 63 N. C. 305; Etheridge Y. Vernoy, 70 N. C. 724, and some others. As stated in Cash Reg- ister Co. V. Townsend, 137 N. C. 652, 50 S. E. 306: "Expressions of commendation or opinion or extravagant statements as to value or prospects, or the like, are not regarded as fraudulent in law;'' but these representations in the case before us were not of that character; they were not mere matters of opinion, but purported to be statements of facts and were so intended and accepted by the parties. Knowing that the only one of the defendants whose experience qualified him to make an examination of the property with any intelligence, v.'as physically unable to do so, the plaintiffs assured the defendants that they had caused the timber on the land to be carefully estimated, and such estimate showed that there were 3,000,000 feet of hardwood timber on the tract; whereas, in fact and truth, the knowledge furnished to the plaintiffs by those es- timates showed only 1,000,000 feet on the same. Even where there is doubt on the question, the matter must be referred to the jury to determine whether representations, though expressed in the form of an opinion, were given and reasonably relied on as material facts inducing the trade. And the authorities cited do 3jot support the plaintiffs on the facts of the case before us. The only cases which give support to the plaintiffs' position are those of Lytle v. Bird and Credle v. Swindell, supra, in both of which it was expressly held that an action for deceit would lie in no case, on the sale of land, for fraudulent representation as to the quantity sold or what particular land was included in the deed ; and this on the ground that the parties should inform themselves by a survey. These two cases are contrary to the trend of modern decisions ; were expressly disapproved as to the point for which they are now cited, in the case of "Walsh v. Hall, supra, and have since been ignored as authority. Where a sale has been effected by an actionable fraud, the pur- chaser has an election of remedies. He may ordinarily, at leasL at the outset, rescind the trade, in which ease he can recover the purchase price or any portion of it he may have paid, or avail himself of the facts as a defense in bar of recovery of the pur- chase price or any part of it which remains unpaid, or he may hold the other party to the contract and sue him to recover the damages he has sustained in consequence of the fraud. In order to rescind, howevier. the party injured must a^-t promptly and within a reasonable time after the discovery of the fraud, or after he should have discovered it by due diligence ; and he is not allowed to rescind in part and affirm in part; he must do one or the other. And, as a general rule, a party is not allowed to rescind where he is not in a position to put the other in statu quo by restoring the consideration passed. Furthermore, if, after discovering the fraud, the injured party voluntarily does some act in recognition of the contract, his power to rescind is then at Sec. 7.] RIGHTS growing oi;t op contract. 705 an end. These principles will be found in accord with the authori- ties. Bishop on Cont. §§ 679, 688; Beach on Cent. § 812; Page on Cont. §§ 137, 139; Clark on Cont. pp. 23G, 237; Trust Co. v. Au- ten, 68 Ark. 299, 57 S. W. 936 ; Parker v. Marquis, 64 Mo. 38. Applying these principles to the facts before us, the defendants could not now rescind the trade and plead the fraud in bar of recovery on the notes. They have made payments in recognition ^f the contract ; they have manufactured and sold the timber, and are not in a position to restore the consideration. They contracted to manufacture and sell the timber on the land, according to the evidence, not long after the trade, and their explanation seems satisfactory. They had piat out large sums of money on the enter- prise; and the witness Loomis states that he complained of the fraud before the note was due, but went on and cut the timber as the best and only thing to do to save themselves. The fact, how- ever, that they are not now in a position to rescind the trade and plead the fraud in bar of recovery on the notes, does not prevent them from setting up the fraud by way of counterclaim and re- covering for the damages suffered. This may be done, though the defendants have made payments in recognition of the contract, and may have continued to manufacture and sell the lumber after knowledge of the fraud. Trust Co. v. Auten and Parker v. Mar- quis, supra. The damages usually are the difference between the value of the property sold as it was and as it would have been if it had come up to the representation. The sale having been ratified, the plaintiffs can maintain an action on the notes, subject to any counterclaim the defendants may have against the plaintiff, to be determined under the law as here declared and on the facts as they may be established. There is error. The judgment will be set aside and a new trial awarded. See 8 L. R. A. (N. S.) 804, and note (measure of damages in deceit in sale ot realty); 10 lb. 640, and note (when action for deceit lies for fail- ure to fuimi a promise). See "Fraud," Century Dig. §§ 12, 19-23; De- cennial and Am. Dig. Key No. Series §§ 11, 22; "Sales," Century Dig. §§ 65-85, 296-301, 973-986; Decennial and Am. Dig. Key No. Series §§ 42, 121, 348. SETZAR V. WILSON, 26 N. C. 501, 513. 1844. Deceit for Fraud Practiced ty Vendee on Vendor. In the course of a long opinion discussing the rights and reme- dies of one who has been induced to sell his property to another by the purchaser's representations as to value, it is said by Rup- FiN, C. J.: "A vendor is liable in an action of deceit for false representations, as to the title or qualities of a chattel sold by him. But no action for a cheat has ever been maintained by a seller against the purchaser, for the misrepresentations of the latter upon those points. The law does not give an action against the vendor for his false affirmation as to the value of the thing sold. Remedies — 45. 706 RIGHTS GROWING OUT OF CONTRACT. [CJl. S. Saunders v. Ilatterman, 24 N. C. 32. Much less will an action lie against a purchaser for such an affirmation, or buying at an under value. In the nature of things, the owner of a chattel is supposed to be the best judge of its value, or to be most capable of ascer- taining it." In Smith v. Beatty, 37 N. C. at p. 458, it is said by Daniel, J.: "A ven- dee who knows that there is a gold mine on the land [he is seeking to purchase] is not compelled to disclose that fact to the vendor. But if he is interrogated as to his knowledge of such a thing and he then denies any knowledge of the mine, the denial will make the transaction fraudu- lent." This was said in a case in equty. See "Sales," Century Dig. §§ 86-100; Decennial and Am. Dig. Key No. Series § 43. JOYNER V. EARLY, 139 N. C. 49, 51 S. E. 778. 1905. Deceit Practiced hy Vendee on Vendor. Vendor's Choice of Remedies. Recovery of the Specific Chattel. Damages. FAotion to recover possession of a mule. Judgment against defendant, and he appealed. Affirmed. The facts appear in the beginning of the opinion.] Brown, J. The plaintiff sued out claim and delivery proceed- ings for the mule, and filed the ordinary complaint, alleging sim- ply ownership upon the part of the plaintiff and wrongful deten- tion by the defendant. On the trial the plaintiff offered evidence tending to prove that the defendant obtained possession of the mule in a trade with the plaintiff by false, fraudulent, and deceit- ful representations. At the conclusion of the plaintiff's evidence the defendant moved to nonsuit. The court denied the motion and permitted the plaintiff to amend his complaint by setting out the allegations of fraud, misrepresentation, and deceit, upon the payment of costs, "and the trial proceeded vidthout objection by the defendant." In his brief the defendant reviews the ruling of the court. Waiving the fact that the defendant did not except to the allowance of the amendment, we sustain the ruling of the judge below. It was in no sense the introduction of a new cause of action, nor is it prohibited in Ely v. Early, 94 N. C. 1. The mule was the property in controversy. The amended complaint simply set out in full the allegations of fraud and deceit. Under the facts testified to by the plaintiff he had the right to sue for damages for the alleged false warranty, or repudiate the trade and sue to recover the specific property. This is well set- tled. Des Farges v. Pugh, 93 N. C. 31, 53 Am. Rep. 446; Wilson V. White, 80 N. C. 280 ; Wallace v. Cohen, 111 N. C. 103, 15 S. B. 892 ; Bishop on Contracts. § 667 ; Benjamin on Sales, § 656. and note ; Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993 ; Blake v. Blackley, 109 N. C. 262, 13 S. E. 786, 26 Am. St. Rep. 566. The allowance of this amendment was a matter in the sound discre- tion of the court, and not reviewable. Sec. 8.] RIGHTS GROWING OUT OF CONTRACT. 707 If vendor sue for the price, is he thereby estopped to sue for the fraud and deceit? See Sewing Mach. Co. v. Owings, 140 N. C. 503, 53 S. E. 345, 8 L. R. A. (N. S.) 582, and note. See "Sales," Century Dig, §§ 890-895; Decennial and Am. Dig. Key No. Series § 316. Sec. 8. Conspiracy. KIMBALL V. HARMAN and BURCH, 34 Md. 407, 6 Am. Rep. 340. 1871. Remedy for Conspiracy to Injure. Necessary Allegations and Proof. Conspiring Without Acting. [Action on the Case by Harman and Burch for an alleged conspiracy to injure. There were three defendants, Kimball, Hanson and Phillips. Verdict and judgment against Kimball alone, and he appealed. Re- versed. The declaration alleged that Kimball et als. combined and conspired together to prevent the plaintiffs' receiving some bedsteads which Kim- ball had sold to them; and that the plaintiffs were thereby subjected to great trouble, delay, and vexatious litigation. The defendants pleaded not guilty. The proof was, that the bedsteads had been purchased by plaintiffs, and had been shipped to them, but were not delivered because of acts of the defendants; and that plaintiffs had thereupon brought re- plevin for the bedsteads. There was no proof of any particular damage that had been done to plaintiffs, nor of any injury to their business. There were several prayers for instructions refused.] Alvey, J. Before considering any of the questions raised by the exceptions, it may be proper that we state briefly the general principles that govern cases of this character, as by so doing we may the more readily determine whether there be any sufficient ground disclosed in the record to sustain the plaintiff's right to recover as against the appellee. There is no doubt of the right of a plaintiff to maintain an ac- tion on the case against several for conspiring to do, and actually doing, some unlawful act to his damage. But it is equally well established that no such action can be maintained unless the plaintiff can show that he has, in fact, been aggrieved, or has sustained actual legal damage hy some overt act, done in pursu- ance and execution of the conspiracy. Cartrique v. Behrens, 30 Law J. Q. B. 168. It is not, therefore, for simply conspiring to do the unlawful act that the action lies. It is for doing the act itself, and the resulting actual damage to the plaintiff that afford the ground of the action. Indeed, the allegation of conspiracy by the defendants would seem to be immaterial as to the right of action. "A simple conspiracy," says Nelson, Chief Justice, in Plutchins V. Hutchins, 7 Hill (N. Y,), 107, "however atrocious, unless it re- sulted in actual damage to the party, never was the subject of a civil action, not even when the old form of a writ of conspiracy, in its limited and most technical character, was in use. Then, in- deed, the allegation of conspiracy was material and substantive, because, unless established by the proof, the plaintiff failed, as it was essential that the verdict should be against two at least in order to be upheld." The action like the present, therefore, may 708 RIGHTS GROWING OUT OP CONTRACT. [Cll. 8. be brought against one defendant, or, if brought against several, one may be convicted and the others acquitted. But where the action is brought against several, as having combined to do the un- lawful act, it is necessary, of course, in order to recover against them all, to prove that they were all engaged in the conspiracy. The foundation or gist of the action, however, is the actual dam- age sustained by the plaintiff. Some right of his must be violated, and damage must result therefrom as the direct and proximate consequence, otherwise the action cannot be sustained. This has been repeatedly decided. In Saville v. Koberts, 1 Ld. Eaym. 374, Lord Holt, in answer to the suggestion at the bar, that the fact of the conspiracy was sufficient to maintain the action, said, "that conspiracy is not the ground of these actions, but the damage done to the party, for an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution ; but if the party be damaged, the action will lie. Prom ^vhence it follows," continued his lordship, "that the damage is the ground of the action, which is as great in the present case as if there had been a conspiracy. And F. N. B., 114 D., says, that where two cause a man to be in- dicted, if it be false and malicious, he shall have conspiracy; where one, he shall have case, so that the actions are founded upon one common foundation ; but the number of parties defendants determines it to the one or to the other. Though in the old books, such actions are called conspiracies, yet they are nothing in fact but actions on the ease. For conspiracy (to speak properly) lies only for procuring a man to be indicted of treason or felony, where life was in danger F. N. B, 116 A. And if such an action be sued against two defendants for procuring a man to be indicted of a smaller offense, though the word conspiraverunt be in the writ, yet, if one of them be acquitted, the other may be found guilty. 11 Hen. VII, 25. Contra, of a proper action of con- spiracy ; for there, if the one be acquitted, no judgment can be given against the other. ' ' It is clear, therefore, as well upon the authority of other cases as that of Raville v. Roberts, that an act which, if done hy one alone, consiiiutes no ground of action on the case, cannot he made the ground of such action hy alleging it to have he en done hy and through a conspiracy of several. The quality of the act, and the nature of the injury inflicted by it, must deteimiine the question whether the action will lie. Hutehins v. Hutchins, 7 Hill, 104; Wellington v. Small, 3 Cush. 145 ; Adler v. Fenton, 24 How. 407 ; Cotterell v. Jones, 11 Com. Bench, 713 ; 73 Eng. Com. Law Rep. 713 [8 Cyc. 646, note 90]. The fact of conspiracy is matter of aggravation, and, as we have before stated, it onlj' becomes neces- sary, m order to entitle the plaintiff to recover in one action against several, that the fact of the combination or conspiracy should be proved. Now, with these general principles in view, let us turn to the prayers that were offered by the defendants and rejected by the court below, and ascertained whether there was error in their re- Sec. 8.] RIGHTS GROWING OUT OF CONTRACT. 709 jeetion. The third and sixth would seem to be the most material. By the third prayer, the court was requested to instruct the jury that, even if there had been an unlawful combination among the defendants to injure the plaintiffs, there was no evidence that any damage was done, and they were not, therefore, entitled to recover. As we have seen, the gist of the action is not the con- spiracy, but the actual damage done to the plaintiffs; and this prayer must be taken as referring to such damage as was properly recoverable in this form of action. The combination or conspiracy among the defendants to damage the plaintiffs was negatived by the verdict of the jury in acquitting two of the defendants, Han- son and Phillips ; and whether the other defendant, the appellant, should not also have been acquitted, depends upon the nature of the act proved and the consequent damage to the plaintiffs. The only evidence in the case upon which the plaintiffs could pretend to rely for recovery as against the present appellant alone, was the well established fact that the bedsteads, which had been purchased by the plaintiffs and shipped to them in Balti- more, were withheld from them by the direction of and through the instrumentalities emploj'cd by the appellant, when, as it sub- sequently appeared, they were entitled to receive them. They resorted to replevin and recovered them; but it is very manifest from all the evidence in the cause, both on the part of the plain- tiffs and defendants, that the replevin was more the result of the election of the parties than the necessity of the case. Be that, however, as it may, it is very clear, that no matter how flagrant may have been the intention of the appellant to violate his con- tract with the plaintiffs, or, however much he may in fact have violated it, this action was not the remedy for such wrong. If the property had been so far delivered to the plaintiffs as to vest in them the right of possession, then, for any unauthorized obstruc- tion of or interference with that right, such as is complained of in this case, the actions of trespass or trover were the appropriate remedies for the recovery of damages. But an action on the case, in which consequential damages only are recoverable, is not the proper remedy, and especially not in the face of the testimony of one of the plaintiffs themselves, that "he could not say anything about any particular damage, ' ' and did not know of any instance in which their business had been hurt. Finding, therefore, no sufficient evidence in the record of daniage to the plaintiffs that could be recovered in this action, we think the court below was in error in refusing the third prayer. By the sixth prayer, the court was requested to instruct the jury that the plaintiffs were not entitled, under the pleadings in the cause, to recover any damage against the appellant for breach of any contract of sale to the plaintiffs ; which prayer was refused, and, in which refusal, we think the court was clearly in error. The action is not founded upon breach of contract, and the jury should not have been allowed to take any such question into con- sideration. It appears by the bill of exceptions that the plain- 710 RIGHTS GROWING OUT OF CONTRACT. [Git. S. tifEs' coimsel conceded the correctness of the prayer, but as the court rejected it, it was withheld from the jury, and, conse- quently, the appellant derived no benefit from the concession. It was clearly his right to have the instruction granted by the court, being, as we think, such as ought to have been granted. The judgment of the court below will, therefore, be reversed; but, in order that the plaintiffs may have an opportunity of pro- ducing other proof, or to make application for leave to amend in such respect as they may be advised, we shall remand the cause for a new trial. But, of course, any further proceedings that may be had in the present ease can only be taken against the appellant, as the other two original defendants stand acquitted and dis- charged. Judgment reversed. "It is frequently criminal for many to combine to effect even a lawful end. It is doing a lawful thing by unlawful means. But that offense is to the public. A private person cannot complain of the conspiracy as such; but only when it operates to his injury — that is to say, when as to him the object of the conspiracy is unlawful. There must be a fraudu- lent combination." Eason v. Petway, 18 N. C. at p. 47. For further au- thorities on the subject of Conspiracy as a cause of a civil action, see Mcintosh Cont. 390, 407, and note; 8 Cyc. 645 et seq. 2 L. R. A. (N. S.) 292, 789, 824, 4 lb. 302, 5 lb. 899, 6 lb. 1067, 9 lb. 904, 12 lb. 642, 16 lb. 85, 17 lb. 162, 18 lb. 707, 22 lb. 607, and notes (conspiracies by unions, strikes, boycotts, blacklisting, etc.) ; 3 lb. 470, and note (to alienate af- fections of spouse); 4 lb. 1119, and note (to blacklist a servant). See "Conspiracy," Century Dig. §§ 1-5; Decennial and Am. Dig. Key No. Series §§ 1-6. Sec. 9. Injunction Against Breach op Contract. HARRIS V. THBUS, 149 Ala. 133, 43 So. 131, 10 L. R. A. (N. S.) 204. 1907. Contracts in Restraint of Trade. Statement of facts by Denson, J. : This was a bill filed by Theus against Harris and wife for an injunction to restrain the said Harris from engaging in or carrying on the business of buying crude gum and distilling turpentine within ten miles of the town of Geneva. The bill is based on a contract wherein Theus pur- chased of Harris certain leases of pine land for turpentine pur- poses, and erected a distillery for the manufacture of turpentine, and a covenant in said contract that said Harris would not engage in the naval stores business within ten miles of the town of Geneva, so long as Theus should be engaged in said business at Geneva. The allegations of the bill and of the answer, together with the pleadings in the cause, are sufficiently set out in the bill of exceptions. The chancellor declined to dismiss the bill for want of equity, overruling the demurrer thereto, and, on a final hearing, decreed that complainant was entitled to the relief prayed for. From this decree, respondents appealed. Denson, J. It may be conceded as being the general rule in all the states, as well as in England, that contracts in general re- Sec. 9.] EIGHTS GROWING OUT OF CONTRACT. 711 straint of trade are void as against public policy. 24 Am. & Bng. Enc. Law (2d ed.), 842; 3 lb. 882; 9 Cyc. 525; 2 Pom. Eq. Jur. § 934; McCurry v. Gibson, 108 Ala. 451, 54 Am. St. Kep. 177, 18 So. 806 ; Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dee. 679 ; Mitchell V. Reynolds, 1 P. Wms. 181 ; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 46 L. R. A. 255, 78 Am. St. Rep. 612, 43 Atl. 723. "In determining what is the public policy in this regard, we have, however, to take into account certain contracts which restrain trade. It is of public interest that every one may freely acquire and sell and transfer property and property rights. A tradesman, for example, who has engaged in a manufacturing business, and has purchased land, installed a plant, and acquired a trade connection and good will thereby, may sell his property and business, with its good will. It is of public interest that he shall be able to make such a sale at a fair price, and that his pur- chaser shall be able to obtain by his purchase that which he de- sired to buy. Obviously, the only practical mode of accomplish- ing that purpose is by the vendor's contracting for some restraint upon his acts, preventing him from engaging in the same busi- ness in competition with that which he has sold. His contract to abstain from engaging in such competitive business is a contract in restraint of trade, but one which . . has been recognized as not inimical to, but permitted by. public policy. Therefore, while the public interest may be that trade in general shall not be restrained, yet it also permits and favors a restraint of trade in certain cases. Contracts of this sort, which have been sustained and enforced by courts, have been generally declared to be such as restrain trade, not generally, but only partially, and no more extensively than is reasonably required to protect the purchaser in the use and enjoyment of the business purchased, and are not otherwise injurious to the public." This is the doctrine recog- nized in the courts of many of the states, including our own court. (Cyc. 529, and cases cited in note 70; 24 Am. & Eng. Enc. Law (.2d ed.), 850; McCurry v. Gibson, supra; Tuscaloosa Ice Mfg. Co. V. Williams, 127 Ala. 110, 50 L. R. A. 175, 85 Am. St. Rep. 125, 28 So. 669 ; Trenton Potteries Co. v. Oliphant, supra. . . . It appears . . that the covenant is that the cove- nantor shall not enter into nor engage in the turpentine business at any point within ten miles of the town of Geneva so long as the covenantee shall operate a turpentine still at Geneva. The bill avers that, "soon after taking possession of the property pur- chased from Harris, complainant erected, at considerable ex- pense, a turpentine distillery near Geneva; said town being the shipping point of complainant." The contention of Harris, the covenantor, is, that this averment does not show that complainant is operating a still "at" Geneva — that operating the still "near" Geneva does not show the operation of it "at" Geneva — and, therefore, that no breach of the covenant is shown by the bill. . . . The proof shows that complainant's distillery is located about a mile from the county court-house in Geneva, and about half a mile outside of the corporate limits of the town; that 712 RIGHTS GROWING OUT OF CONTR4CT. [CJl. 8. Geneva is the shipping point for all the products of his enter- prise. Construing the word "at" in the light of the circum- stances shown by the evidence, and on the considerations hereto- fore adverted to in respect to this question and the authorities cited, we are of the opinion that this insistence is not well made. We concur with the chancellor that the complainant has made a case entitling him to the relief prayed for, and the decree must be affirmed. See note to the principal case in 10 L. R. A. (N. S.) 204; Mcintosh on Cont. 381-387; 5 Pom. Bq. Jur. § 293. That specific performance of a contract of service between master and servant will not be decreed, see In re Mary Clark, 1 Blackf. 122, inserted at ch. 6, § 3, (c). See further, as to what contracts are and are not void for being in restraint of trade, and for when injunctive relief will be afforded in such cases, 5 L. R. A. (N. S.) 136, 6 lb. 847, 892, 9 lb. 446, 501, 14 lb. 909, 19 lb. 762, 769, and notes. See Key No. Series Vol. 2, "Contracts," §§ 62, 117, 202; "Injunc- tion," §§ 61, 114. PHILA. BALL CLUB v. LAJOIE, 202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227. 1902. Enforcement of Negative Covenants. Potter, J. The defendant in this case contracted to serve the plaintiff as a baseball player for a stipulated time. During that period he was not to play for any other club. He violated his agreement, however, during the term of his engagement, and, in disregard of his contract, arranged to play for another and a rival organization. The plaintiff, by means of this bill, sought to restrain him during the period covered by the contract. The court below refused an injunction, holding that, to warrant the interference prayed for, "the defendant's service must be unique, extraordinary, and of such a character as to render it impossible to replace him ; so that his breach of contract would result in irre- parable loss to the plaintiff. ' ' In the view of the court below the defendant's qualifications did not measure up to this h]gh stand- ard. . . The learned judge who filed the opinion in the court below, with great industry and painstaking care, collected and reviewed the English and American decisions bearing upon the question in- volved, and makes apparent the wide divergence of opinion which has prevailed. We think, however, that, in refusing relief unless the defendant 's services were shown to be of such a character as to render it impossible to replace him, he has taken extreme ground. It seems to us that a more just and equitable rule is laid down in Pom. Spec. Perf. p. 31, where the principle is thus declared: "Where one person agrees to render personal services to another, which require and presuppose a special knowledge, skill, and ability in the employe, so that in case of a default the same service could not be easily obtained from others, although the affirmative specific performance of the contract is beyond the See. 9.] EIGHTS GROWING OUT OF CONTRACT. 713 power of the court, its performance will be negatively enforced by enjoining its breach. . . . The damages for breach of such contract cannot be estimated with any certainty, and the em- ployer cannot, by means of any damages, purchase the same serv- ice in the labor market." We have not found any case going to the length of requiring, as a condition of relief, proof of the im- possibility of obtaining equivalent service. It is true that the in- jury must be irreparable; but, as observed by Mr. Justice Lowrie in Com. v. Pittsburgh & C. R. Co., 24 Pa. 160, 62 Am. Dec. 372 : "The argument that there is no 'irreparable damage' would not be so often used by wrongdoers if they would take the trouble to observe that the word 'irreparable' is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages which are estimated only by conjecture, and not by any accurate standard." We are therefore within the term whenever it is shown that no certain pecuniary standard exists for the measurement of the damages. This principle is applied in Vail v. Osbum, 174 Pa. 580, 34 Atl. 315. That ease is authority for the proposition that a court of equity- will act where nothing can answer the justice of the ease but the performance of the contract in specie, and this even where the subject of the con- tract is what, under ordinary circumstances, would be only an article of merchandise. In such a case, when, owing to the special features, the contract involves peculiar convenience or advantage, or where the loss would be a matter of uncertainty, then the breach may be deemed to cause irreparable injury. . We feel, therefore, that the evidence in this ease justifies the conclusion that the services of the defendant are of such a unique character, and display such a special knowledge, skill, and ability, as renders them of peculiar value to the plaintiff, and so difficult of substitution that their loss will produce "irreparable injury,'' in the legal significance of that term, to the plaintiff. The action of the defendant in violating his contract is a breach of good faith, for which there would be no adequate redress at law. and the case, therefore, properly calls for the aid of equity in negatively en- forcing the performance of the contract by enjoining against its breach. . Decree reversed. For other cases on enforcing negative covenants, see 6 L. R. A. 653, 7 lb. 381^6 lb. (N. S.) 1115, 23 lb. (N. S.) 506, and notes; see Mcintosh Cont. 381-386, and note, for North Carolina cases and other authorities on contracts in restraint of trade; for a full presentation of the subject, see Part I-VI, Ames' Cases in Eq. Jur. 89-122; see also 22 Cyc. 856. For a contract by a shareholder, who sells his stock, that he will not compete with the corporation, see 23 L. R. A. (N. S.) 506, and note. See "In junction," 10 Decennial Dig. §§ 14, 60. 714 RIGHTS GROWING OUT OF CONTRACT. [Ch. 8. Sec. 10. "Breach op Promise." SHORT V. STOTTS, 58 Ind. 29. 1877. Breach of Promise of Marriage. [Margaret Stotts sued Short for damages for a breach of contract to marry her. Verdict and judgment against Short, who carried the ease to the supreme court by writ of error. Affirmed. The complaint was as follows: "The plaintiff, Margaret Stotts, for her amended complaint herein, complains of the defendant, Samuel W. Short, and says, that on the 1st day of July, 1869, she was, and still is, unmarried; that on said day the defendant, in consideration of a prom ise by plaintiff that she would marry him, undertook and agreed to marry the plaintiff within a reasonable time thereafter, upon request; that the plaintiff, confiding in said promise, has always since remained, and is now, ready and willing to marry the defendant; but she avers that the defendant, although often by her since thereunto requested, and especially so requested on or about the 10th day of March, 1870, has theretofore, then, and ever since refused, and still refuses, to marry the plaintiff; and, further, that on the 15th day of September, 1871, at the county of Monroe and state of Indiana, the defendant, in violation of his promise to her as aforesaid, married one Jennie Batterton; and the plaintiff avers that, by reason of the refusal and failure to marry her as defendant had promised and agreed to do, she became sick and greatly afflicted in body and mind, and so remained sick and distressed from that time to the present; and for all the matters herein complained of she says, she has been damaged in the full sum of five thousand dollars, for which she demands judgment, and for all other proper relief." It was insisted "that the complaint was not good, because there was no law in Indiana which authorized an action to recover damages for the breach of a contract to marry."] "WoRDEN, J. . . The counsel for the appellant, in their brief, which shows much industry and research, claim that, prior to the year 1607, the contract for maniage was one exclusively of ecclesiastical, and not of common law, jurisdiction; and that, prior to that time, no action had been maintained in a common la-w court for the breach of such contract. Wi are referred by counsel to the case between Stretcher and Parker. 1 Rol. Abr. 22, as the first case in which such action was maintained in England, and this was in 1639. We have not found any ease of an earlier date. The case of Holcroft v. Dickenson, Carter, 233, decided m 25 Car. 2, is an important one, and shows, as it seems to us, that it Avas always regarded as a principle of the common law, that an action would lie for damages in such a case. . . . In Anglo-Saxon times, there was no distinction between the lay and ecclesiastical jurisdiction ; the county court was as much a spiritual as a temporal tribunal ; the rights of the church were as- certained and asserted at the same time, and by the same judges, as the rights of the laity. It was not until after the Norman con- quest, that the common-law and the ecclesiastical courts were sep- arated, and the latter invested with sole jurisdiction over eccle- siastical causes. 3 Chitty's Blk. 61-63. Until the pontificabe of Pope Alexander III., which commenced, we believe, in 1159, mar- riage, it seems, was not a subject of ecclesiastical jurisdiction. Sec. 10.] RIGHTS GROWING OUT OP CONTRACT. 715 Now, the ease of Holcroft v. Dickenson, supra, establishes that, by the principles ol; the common law which existed long anterior to .1607, an action for the breach of contract for marriage will lie. Indeed, the principle which upholds such action is as old as the principle which gives damages in any case for the breach of a contract. And it is immaterial whether anj' case can be found in England prior to 1607 in which such action has been maintained. The principle is what we have adopted as a part of the common law. The doubt which seems to have arisen in the early cases was, not whether, on the principles of the common law, the action would lie, but whether, as the ecclesiastical courts had connusance of matrimonial matters, such action could be maintained in a common-law court. Thus, Vaughan, Chief Justice, in the case above cited, thought it could not, because if there was any impedi- ment to the marriage, it could not be shown in the common law court. But the establishment of separate ecclesiastical courts in England was no part of the common law. William I., says Black- stone, "was at length prevailed upon to establish this fatal en- croachment, and separate the ecclesiastical court from the civil. "^ 3 Blk. 62. Nor were any statutes of England, on the subject of such separate ecclesiastical courts, statutes in aid of the com- mon law, but rather in derogation of it; and they were local to that kingdom, and never in force here. The whole system of Eng- lish ecclesiastical courts, as separate from the civil, is foreign to our institutions, and has no place in our jurisprudence. There is here, therefore, no conflict of .jurisdiction between the courts of the one class and the other. Here, all wrongs are redressed and remedies furnished in the civil tribunals. And there is no reason why an action may not be maintained for the breach of a contract of marriage, in our courts, according to the principles of the common law. . . Judgment affirmed. See Bouv. Law Diet. "Promise of Marriage," 4 Am. & Bng. Enc. L. 882 et seq.; 5 Cyc. 1001 et seq.; 10 L. R. A. 584, and note; 47 lb. 385; 4 L. R. A. (N. S.) 616, and note (damages); 7 lb 582, and note, 86 N. C. 91, (ill health as a defense); 9 L. R. A. (N. S.) 1020, and note, 86 N. C. 91 (abatement of action) ; 19 L. R. A. (N. S.) 656, and note (release of, as a consideration for a promise to support); 14 lb. at p. 748 (character of female plaintiff as a defense) . See Mordecai's L. L. 265-275, 176, 357. See Vol. 3 Cent. Dig., "Appeal and Error," § 2933; Vol. 8, "Breach of Mar- riage Promise," S§ 1, 36; Vol. 10, "Common Law," § 10; Vol. 13, "Courts," § 162; Vol. 23, "Frauds, Statute of," § 3; Vol. 39, "Pleading," § 1401. 716 REMEDIES IN SPECI.VL CASES. [CJl. 9. CHAPTER IX. REMEDIES IN SPECIAL CASES. Sec. 1. Bills for Advice to a Fiduciary, tayloe v. bond, 45 n. c. 5, 14-17. 1852. The Jurisdiction for Advising Fiduciaries and the Limits of Such Juris- diction. [Bill in Equity filed by the executors appointed by a will, against the legatees and devisees, to obtain the advice, direction and opinion of the court in construing the will. Twelve questions were propounded to the court. The cause was transferred to the supreme court and heard upon bill and answer. Only so much of the opinion as discusses the remedy, is here inserted.] Pearson, J. The bill is filed by the executors of Lewis Bond, against the legatees. It sets out the will, and prays for a construc- tion in reference to several matters specified, and submits to dis pose of the fund under the direction of the court. It also prays for the advice and opinion of the court in reference to several other matters. The questions of construction, although furnishing proper grounds for the application, are not very difficult of solution ; and the case would have been disposed of at last term, but for the several matters in reference to which, the opinion and advice of the court (as distinguished from its direction), is asked. The subject was thus made complicated, and an advisari was taken, for the purpose of ascertaining the full scope and object of the bill and of defining the jurisdiction of a court of equity in regard to such matters. Besides asking for a construction of the several parts of the will, which is necessary for the present action of the court, a con- struction is asked for on various other parts, in reference to the past conduct of the executors, and to their future rights, and the future rights of the legatees — the bill proceeding on the assump- tion, that an executor has a right to ask for the opinion and ad- vice of the court, as to any matter, past, present or future, pro- vided it has grown, does or may grow, out of the construction of the will, upon the general idea, that a court of equity has a sweep- ing jurisdiction in reference to the construction of imlls. This idea is an erroneous one. The jurisdiction in matters of con- struction, is limited to such as are necessary for the present action of the court, and upon which it may enter a decree, or direction in Sec. 1] REMEDIES ]N SPECIAL CASES. 717 the ■culture of a decree. The court cannot, for instance, entertain a bill for the construction of a devise. Devisees claim by pur- chase under the devise, as a conveyance. Their rights are purely legal, and must be adjudicated by the courts of law. A court of equity can only take jurisdiction when trusts are involved, or when devises and legacies are so blended, and dependent on each other, as to make it necessary to construe the whole, in order to ascertain the legacies; in which case, the court having a jurisdic- tion in regard to the legacies, takes jurisdiction over all other matters necessary for its exercise. The power of a court of equity to decree the payment of lega- cies is a well settled and ancient jurisdiction, assumed on the ground that the ecclesiastical court cannot take the accounts usu- ally involved, or enforce its decree. The power to entertain bills of interpleader is also a well settled and ancient jurisdiction, as- sumed in cases of conflicting trusts, on the ground that, as the court has exclusive control of trustees, it is right to allow them, where there are conflicting claims, to bring in the fund, have the claims adjusted, and the fund disposed of under its decree, so as to save the trustees from responsibility and future litigation ; and assumed, in cases of conflicting legal claims, for the protection of any person, of whom several claim the thing, debt, or duty (pro- vided he has incurred no independent liability to either, and has no interest), on the broad ground of protecting a mere stake- holder, and because this principle, although always recognized at common law, is excluded from practical application in the courts of law, by their technical forms of pleading. From these two powers is clearly derived jurisdiction to enter- tain a bill, at the instance of executors, for the purpose of con- struing wills, fixing the legacies, and having them paid under the direction of the court. This jurisdiction has been long exercised, and, in fact, is nothing more than an extension of the doctrine of interpleader to the case of executors and legatees, under the power of the court to decree payment of legacies — treating the executor as a trustee or stake-holder of a fund over which the court has control. The jurisdiction is extended even further, and in cases of difficult and complicated accounts, a court of equity will have the accounts taken, the debts ascertained, and the assets, legal as well as equitable, paid over to the creditors under its direction — in these cases, the ingredient of account (a very extensive head of equity jurisdiction), being also involved. We can see no ground upon which to base a jurisdiction, to allow executors to ask the opinion of the court as to the future rights of a legatee; — for instance, "Who -will be entitled, when a life estate expires?" — "When property is given to one for life, with a limitation over, does the first taker have the entire interest by the rule in Shelly 's case?" — or, "What would be the conse- ouence of a supposed state of facts that may hereafter arise?" True, these are matters of construction, but the qiiestions cannot 718 REMEDIES IN SPECIAL CASES. [Ch. 9. noiv he presented, so as to be settled by a decree. A declaration of opinion would be merely in the abstract, until existing rights come in conflict, so as to give the court a subject to act on. Again, we can see no ground for the jurisdiction to give an opinion to executors as to whether their past conduct ivas right, if they chose to act. It is then too late to ask the opinion of the ^ourt, because the court can then make no decree in the premises. Such a jurisdiction is directly excluded by the doctrine of inter- pleader. It is well settled, if the stake-holder pays over the fund to one of the parties, he comes too late ; for he is not then able to put the fund in the power of the court, so that it can be disposed of under its direction. Again, we can see no ground for the juris- diction to give advice to an executor in regard to his future con- duct or his future rights. He must get such advice from a lawyer ; but he can only get the advice (more properly, the direction) of the court, when its present action is invoked in regard to some- thing to be done under a decree. These conclusions are almost self-evident, and are necessary consequents of the fact, that the court can only act by its decree, which must be made on an existing state of facts, so as to be the action of the court, as distinguished from an abstract opinion. It is therefore unnecessary to pursue the discussion further, es- pecially as no authority, dictum, or intimation to the contrary was cited. It was considered proper to announce them, and to trace the limits of the jurisdiction of the court, in order to prevent the present bill from being dra^^Ti into precedent, whereby bills maj^ become unnecessarily complicated, by the introduction of matters foreign to the jurisdiction. . The principal case Is approved in Heptinstall v. Newsome, 146 N. C. 503, 60 S. E. 416. For a good form of a bill for advice, see Clark v. At- kins, 90 N. C. 629. See 28 Am. & Eng. Enc. L. (2d ed.) p. 1050, c; Hay- wood V. Trust Co., 149 N. C. 208, 62 S. E. 915. See "Wills," Century Dig. ?§ 1665-1669; Decennial and Am. Dig. Key No. Series § 695. LITTLE V. THORNE, 93 N. C. 69. 1885. Limits of the Jurisdiction in Bills for Advice. Devises Construed in Such Cases, When. Parties. What Questions Answered. [Action by those claiming as legatees and devisees under the will of Gray Lodge, against other legatees and devisees under his will, for a construction of certain trusts and devises in such will. Cause heard upon a "case agreed." The court was asked to decide: 1. Whether under the will the widow of testator took in fee, or for life only, the realty de- vised to her; 2. Whether she took absolutely, or for life only, the per- sonalty bequeathed to her. The judge below gave judgment settling these points, and the plaintiffs appealed. Both the action and the appeal dismissed.] AsHE, J. The action seems to be predicated upon the eeneral idea that a court of equity has a sweeping jurisdiction in reference to the construction of wills, which Chief Justice Pearson said, in Sec. 1] REMEDIES IN SPECIAL CASES. 719 the ease of Tayloe v. Bond, 45 N. C. 5, was an erroneous idea. In that case, the learned judge, in his well considered opinion, has given a very clear exposition of the jurisdiction of a court of equity in the construction of wills, and from it we deduce the fol- lowing rule as established: That the jurisdiction in matters of construction is limited to such as are necessary for the present ac- tion of the court, and upon which it may enter a decree or direc- tion in the nature of a decree. It will never give an abstract opin- ion upon the construction of a will, nor give advice, except when its present action is involved in respect to something to be done under its decree. That it will not entertain an action for the con- struction of a devise, for the rights of devisees are purely legal, and must be adjudged by the courts of law. The only exception to this is where a case is properly in a court of equity, under some of the known and accustomed heads of jurisdiction, and a ques- tion of construction incidentally arises, the court will determine it, it being necessaiij to do so in order to decide the cause — as for instance, in actions for partition, or for the recovery of legacies where devises and legacies are so blended and dependent on each other, as to make it necessary to construe the whole, in order to ascertain the legacies; because the court having jurisdiction over legacies must take jurisdiction over all matters necessary to its exercise. The advisory jurisdiction of the court is primarily confined to trusts and trustees, Alsbrook v. Reid, 89 N. C. 151, and cases there cited. Hence the court will advise executors who are regarded £is trustees, as to the discharge of the trusts with which they are clothed, and as incident thereto, the construction and legal effect of the instrument by which they are created, when a case is pre- sented where the action of the court is invoked as distinguished from an abstract opinion. Simpson v. Wallace, 83 N. C. 477 ; Tay- loe v. Bond, supra. But in the latter case it is said there is no ground upon which to base a jurisdiction, to give advice to an ex- ecutor in regard to his future conduct or future rights or to al- low him to "ask the opinion of the court as to the future rights of a legatee," as, for instance, "who will be entitled when a life estate expires?" But the advice is only given upon an existing state of facts, upon which a decree or some direction of the court in the nature of a decree is solicited. In the case presented by the appeal for our consideration, the executor does not invoke the aid of the court with respect to any of his duties arising under the will of the testator, hut the action is constituted by some of the legatees and devisees under the ivill against others, for the abstract opinion of the court with regard to their several rights under the will. The executor is made a party, pro forma, after the institution of the action, and he who is a trustee, and is the only party to the action who could ask the aid of the court, asks nothing. And then there are no pleadings in the case, no complaint, no answer, no order, or decree asked — nothing but a summons and a case agreed between the parties, who I'M REMEDIES IK SPECIxVL CASES. [C'h. 9. have never been recognized as persons who might invoke the ad- visory aid of the court. It is a ease of the first impression, and is not authorized by any decision or dictum of any court that we are aware of. The action is therefore dismissed, and each party will pay his own costs. Appeal dismissed. The idea that the courts o£ equity possess a sweeping jurisdiction to construe wills, is an erroneous one. The jurisdiction in matters of con- struction is limited to such questions as are necessary to the present action of the court. Devises will not be construed in bills for advice, because the rights of devisees are purely legal and must be adjudged when a cause of action arises with respect thereto — and not before. Heptinstall v. Newsome, 146 N. C. 503, 60 S. B. 416. For a full review of the jurisdiction and practice in Bills for Advice, see 3 Pom. Eq. Jur. §§ 1155-1158. See also 28 Am. & Eng. Enc. (2nd ed.) 1050, c; Haywood v. Trust Co., 149 n. c. 208, 62 S. E. 915. See "Courts," Century Dig. § 11; Decennial and Am. Dig Key No. Series § 5; "Wills," Century Dig. §§ 1665-1669; Decennial and Am. Dig. Key No. Series § 695. Skc. 2. Caveat to the Probate op a Will. HUTSON v. SAWYER, 104 N. C. 1, 10 S. B. 85. 1889. Nature of the Proceeding. Proceeding in Rem. Nonsuit. Withdrawal. Citation "To See Proceedings." Parties. [Issue of Devisavit vel non. The propounders, because of an adverse intimation from the judge, submitted to a judgment of nonsuit and ap- pealed. Error. Judgment set aside.] Mebrimon, J. The proceeding is not like an ordinary action or special proceeding to which, regularly, there are parties plain- tiff and defendant; nor is the purpose of it to litigate a cause of action which the plaintiff may abandon or withdraw from the court by suffering a judgment of nonsuit, or otherwise. It is a proceeding in rem, to which strictly there are no parties. The court, in the way prescribed by statute, takes jurisdiction of the paper writing or script propounded for probate as the will of the alleged testator. The jurisdiction is in rem, and the chief pur- pose is not to settle and administer the rights of the parties claim- ing under or against the alleged will, but to ascertain whether the supposed testator died testate or intestate ; and, if he died testatv\ whether or not the script propounded, or any part of it, be his will. "When the issue devisavit vel non is raised the court de- sires to have all persons interested before it to see proceedings. "When they are cited they come into court, and may stand pas- sively, or take active part on either side of the contest, accordingly as they may be interested in favor of, or adversely to, the script propounded as the will. And any party thus before the court may withdraw from the proceeding, paying such costs as he may properly be chargeable with ; but, in that case, the script is left with the court, to be proven or disposed of according to law. In the very nature of the matter, a party before the court does not Sec. 2] REMEDIES JN SPECIAL CASES. 721 sustain such relation to the proceeding as to give liini control of it or the subject-matter of the issue. Pie is there to see proceed- ings and take active part, if he will, in any inquiry as to a matter — the script — of which the court has control, and which it is its duty to settle and determine. The purpose is to determine the nature of the script, for the benefit of all whom it may concern, and not specially for that of any particular person, whether he be before the court or not. The proceedings — the script, the issue — are not of the persons before the court. They cannot control or direct the same as parties ; that is the sole province of the court, as to the issue. They are not parties, and hence, whether they take part on one side or the other of it, they cannot take or suffer a judg- ment of nonsuit; nor can they dismiss the proceeding. Lodge v. Oallender, 4 IrBd. 335; Sawyer v. Dozier, 5 Ired. 97; Enloe v. Sherrill, 6 Ired. 212; Whitfield v. Hurst, 9 Ired. 170; Love v. Johnston, 12 Ired. 355 ; Syme v. Broughton, 85 X. C. 367. The appellants could not therefore suffer a judgment of nonsuit, as they undertook to do. If they could, and this court should affirm the judgment appealed from, the consequence would be to with- draw the script from the jurisdiction of the court, put an end to the proceeding, and leave the issue undetermined; and thus the purpose of the law would be defeated. Obviously, the action of the court was erroneous. The appellants, having excepted be- cause of the rejection of evidence offered by them on the trial, should have waited until after a verdict and judgment, and then assigned errors, and appealed. This is the proper course of prac- tice in this and like cases. There is no formal assignment of th& error we have pointed out, but it is the duty of this court to in- spect the whole record, and give such judgment as in law ought to be given. Code, § 957 ; Thornton v. Brady, 100 N. C. 38, 5 S. B. Rep. 910. Upon an examination of the record before us we see that the judgment appealed from is not warranted by law. It con- travenes the nature and purpose of the proceeding. It is hence erroneous, and this court must so declare. The judgment of non- suit must be set aside, and the issue tried and disposed of accord- ing to law. To that end let this opinion be certified to the superior court. It is so ordered. As to right of withdrawal, nonsuit, etc., and agreements not to con- test, or to defeat probate, see 19 L. R. A. (N. S.) 121, 16 lb. 235, 13 lb. 484, and notes. See "Wills," Century Dig. § 771; Decennial and Am. Dig. Key No. Series § 326. BENJAMIN V. TEEL, 33 N. C. 49. 1850. Who May Take Part in the Controversy, and at What Time and How They Should Proceed. [A script was propounded in the county court by the executor named therein. The widow of the testator filed a Caveat. The county court or- dered an issue of devisavit vel non to be made up and a notice to issue to the heirs and next of kin "to come in and see proceedings." Those Remedies — 46. 722 EEMEDTES IN SPECrAL CASES. [Ch. 9. persons being infants, a guardian ad litem was appointed for them. The issue was tried and the verdict was against the validity of the script as a will. The propounder appealed to the superior court. In that court the propounder moved to set aside the issue upon the ground that the widow was not a party in interest and had no right to file the caveat. This was opposed by the infants through their guardian ad litem, who also moved that they be admitted to contest the will as parties to the Issue. The propounder's motion was overruled; that of the infants was allowed; and the propounder appealed. Affirmed.] RuppiN, C. J. Persons, to whom notice to see proceedings is given, are bound bj^ them, and are, in the view of the court of pro- bate, parties to the proceedings, as far as there can be said to be parties in such a controversy. It is true, they may not be actors in the cause, and therefore not liable to costs. But, unless they do something to preclude them, they may become active at any time before the sentence is pronounced: for, until that is done, any partj^ in interest is entitled to be heard for or against the script. The usual manner of effecting that with us has not been by a new and distinct allegation for or against the will; but by becoming a party to the issue made up under the direction of the court, according to the statute. For, if such allegation were made, it would not entitle that person to an issue to be tried separately, as that might lead to opposite verdicts on the same matter ; but the course is merely to state on the record such matter as shows on which side the person becomes an actor, so as to show distinctly whether he may in the result be entitled to or liable for costs. The proceeding being in rem, any person may intervene to protect his interest while thy Sale for Partition. [Special proceeding for Partition by Sale. Upon issues joined before the clerk the proceedings were transferred to the superior court in term, for trial. The plaintiffs were the owners in fee. of the reversion after the life estate of a widow who held a dower right in the locus in quo. The defendant, who had purchased the widow's life estate and the shares of some of the reversioners, resisted a sale for partition on the ground that reversioners and remaindermen were not entitled to the remedy sought in this proceeding, so long as the life tenant lived. The judge ruled with the defendant, and judgment was entered to that ef- fect. Plaintiff appealed. AfErmed.] AsiiE, J. . At the common law, parceners only were compellable to make partition by a writ of partition, but the benelit of that writ was extended to joint-tenants and tenants in common by the statute of 31 and 32 Henry 8. By the former statute, none but tenants of the freehold who had estates of inheritance could have partition, and only againsC tenants of the freehold. By the latter, tenants for life or years might have partition, but not to affect the reversioner or remainderman. The essential provisions of these statutes are still in force in this state, with only a mod- ification of the remedy. In 1787 an act was passed by the general assembly which gave to tenants in common of real estate the peti- tion for partition, in place of the ancient writ of partition. Act 1787, ch, 274, s. ], brought forward in the Revised Statutes and Revised Code. [Revisal, s. 2487.] The construction put upon this statute is, that it applied only to such cotenants as had seizen where the estate was freehold, but had no application to reversion- ers or remaindermen. Maxwell v. Maxwell, 43 N. C. 25 ; Hassell V. Mizell, 41 N. C. 392. And in so holding this court has followed the English decisions in construing the statute of Henry 8. Our act of ,1787 has made no change in the principles or law applicable to partition, but has only changed the remedy. Mr. Freeman in his work on Cotenancy says: It is a general rule prevailing in England without exception, and also throughout a majority of the United States, that no person has the right to demand any court to enforce a compulsory partition, unless he has an estate in pos- session ; one, by virtue of which he is entitled to enjoy the present rents or the possession of the property as one of the cotenants thereof, sec. 446. The same doctrine is announced and maintained in 1 Wash, on Real Prop. ch. 13, s. 7, sub-div. 7. In New York it has been held that proceedings in partition can be instituted only by a party who has an estate entitling him to immediate possession. Brownell v. Brownell, 19 Wend. 367. See also Miller ex parte, 90 N. C. 625. In New Hampshire it is held: "To maintain a proceeding for partition the applicant must show a present right of possession." 36 N. H. 327. And again, that "one who is interested with others in a remainder or reversion, after an estate of freehold, cannot maintain a petition for parti- '''SO REMEDIES IN SPECIAL CASES. [Ch. 9. tiou of the lands in which he is so interested." 8 N. 11. 93. We might multiply authorities, but Ave deem those cited are sufficient to show that the principle is well established, that cotenants in re- mainder or reversion have no right to enforce a compulsory parti- tion of land in which they have such estate. By the acl of 1812, ch. 847, jurisdiction was given to courts of equity to order the sale of lands for partition, when an actual par- tition could not be made without injury to some of the parties ; but it was held to apply only to such cases where partition might ha-\'e been made at law. ilaxwell v. Maxwell, and Ilassell v. ]Mizell, supra. Now, by the act of 1868-9, ch. 122, s. 12, and The Code, s. 1903, jurisdiction is given to the clerk of the superior court of the county where the real estate or some part thereof lies. We are of opinion there is no error in the judgment of the superior court. Affirmed. "Partition can only be made by tenants in common who are seized of the freehold, and not by those who have the remainder or reversion. Ordinarily, partition lies only in favor of one who has a seizin and a right of immediate possession. Hassell v. Mizell, 41 N. C. 392; Maxwell V. Maxwell, 43 N. C. 25; Wood v. Sugg, 91 N. C. 93; 1 Wash. Real Prop. 583." Osborne v. Mull, 91 N. C. at p. 207. Remainders and reversions may now be the subject of partition by judicial sale, under the statutes of North Carolina. See Mordecai's L. L. pp. 570, 571; Pell's Rev. sees. 2487, 2508, 2509. See "Partition," Century Dig. §§ 39-51; Decennial and Am. Dig. Key No. Series § 12. BRAGG V. LYON, 93 N. C. 151, 153. 1885. Equity Jurisdiction and Practice in Partition. Sale for Partition. Ktien Ordered and when not Ordered. Partial Partition. Actual or hy Sale. Clerk's Jurisdiction. [Special proceeding for partition by sale. The locus in quo consisted of nine acres of land on which there were a grist mill, saw mill, carding machine and water power. The property was owned in common by the plaintiffs, who together owned one-third; James B. Floyd, who' owned one-third; and Pattie N. Lyon, who owned one-third subject to the life estate of her father, Edward B. Lyon, who held It as tenant by the cur- tesy. The petitioners alleged that a sale was necessary because, owing to the nature and size of the tract of land, an actual partition could not be made without material Injury to some or all of those interested. The defendant Pattie N. Lyon answered, denying the necessity for a sale. Edward B. Lyon answered, denying the necessity for a sale and setting up as a defense that a sale would Injure him because his interest was for life only; he also insisted that the court had no power to order a sale under the facts and circumstances of this case. The clerk ruled with Edward B. Lyon, as far as the sale of his life Interest was con- cerned, and dismissed the proceeding as to him; but ordered a sale of the two-thirds of the land not embraced In his life estate. The plaintiff appealed to the judge at chambers, who affirmed the judgment of the clerk. They then appealed to the supreme court. Reversed and pro- ceeding dismissed.! Ashe, J. . When there is a tenancy in common, each claimant has the right to partition, and to have his interest appor- tioned to him in severalty if the estate be susceptible of division, Sec. 3] REMEDIES IN SPECIAL CASES. (31 but if not or it shall be made to appear upon the application of any one or more of the claimants by satisfactory proof, that an actual partition cannot be made without injury to one or more of the parties interested, the court shall order a sale of the property. The Code, sec. 1904. The court of equity has always had the power to make partition as one of its known and accustomed heads of jurisdiction, but it had no power to order a sale of land for that purpose, before such jurisdiction was conferred upon it by statute. After it was invested with that jurisdiction, it possibly had the power to make a decree directing a partial sale such as^ was ordered by his honor in the court below. But this proceeding is not in a court of equity, but in the superior court before the clerk who had no equity jurisdiction ; and besides, the statute giv- ing jurisdiction to courts of equity over sales for partition, has been repealed by sees. 1903 and 1904 of The Code, which confer that jurisdiction upon the superior court to be exercised by the clerk, who is not vested with any equity powers, except where specially conferred by statute. It would seem, therefore, that as the right to decree a partial partition was a power incident to an equity jurisdiction, the clerk could have no such power as was exercised by him in this case, to order a sale of part of the land and leave the residue unsold. The legislature, we think, in enacting the above cited section of The Code, contemplated a sale of the whole land, and the clerk had no right to order a partial sale. Our conclusion therefore is, that there was error in the judgment rendered by the clerk, and also in that of his honor in affirming the judgment of the clerk, and as Edw^ard B. Lyon, the tenant by the curtesy, objected to the sale, we cannot do otherwise, under the decision of Park v. Siler, 76 N. C. 191, than dismiss the petition. Petition dismissed. The existence of a life estate is no longer a bar to a sale for partition. See Pell's Rev. sees. 2508, 2509, That a partial division may be had in an ordinary proceeding for partition is provided for by Rev. sec. 2506. See "Partition," Century Dig. §§ 211-223; Decennial and Am. Dig. Key No. Series § 77. DAVIS V. DAVIS, 37 N. C. 607, 608. 1843. Ess'entials to an Application for a Sale lor Partition. Policy of the Law as to such Sales. [Bill in equity asking for a sale of lands for partition. Sale refused and bill dismissed. Plaintiffs appealed. AfRrmed. The bill was filed by the owners of two undivided eighths of the locus in quo against those who were supposed to own the other six-eighths. One of the defendants, Semple Davis, answered that he had bought the shares of the other eotenants and, consequently, owned the six-eighths not owned by the plaintiffs. He also alleged that he owned other lands adjoining the locus in quo and desired to have his part of the locus in quo set apart to him. He further alleged that a sale tor partition was not only unnecessary, but would be a detriment to him, and that an actual partition was practicable and would be beneficial to all concerned- 732 REMEDIES IN SPECIAL CASES. [Ch. 9. The locus in quo contained ninety-nine acres. The judge below dis- missed the bill, and plaintiff appealed. Affirmed.] RuPPiN, C. J. . . No other decree, it seems to us, could have been made than the one that was made. The cause was heard without proof, and upon the answer admitted to be true, and the court was obliged to take it, that actual partition could properly be made without prejudice to any party, and that a sale could not be made but to the prejudice of the defendant Semple. But it was insisted at the bar that the answer itself furnished a suffi- cient ground to decree the sale as prayed, inasmuch as the judges must understand that so small a tract of land could not be actually divided among so many persons without a prejudice to the owners, each of whom «'ould get a little more than twelve acres in sev- eralty, which in this state must be of little or no value for pur- poses of agriculture. "We answer that the court is not at liberty to make such an inference against the positive statements of the answer, touching the effects of a sale or partition of the land upon the interests of the several proprietors. But furthermore, it does not appear that this land is valuable only for agriculture in the common acceptation of the term. Its situation does not appear, nor its quality. It may have minerals on it, or it may be near Char- lotte, or there may be many other circumstances which would ren- der even so small a parcel as twelve acres of value sufficient to render it proper to divide the land itself among the claimants, in- stead of selling it. Prima facie, each party is entitled to actual partition, and it is incumbent on him who asks for a sale to show that his advantage will be promoted by it, and that no loss will be worked by it to any other party. Decree affirmed. As to the reluctance of the courts to order a sale unless it be clearly necessary in order to do justice, see Craighead v. Pike, 58 N. J. Eq. 15, 43 Atl. 424, inserted post in this section. See "Partition," Century Dig, § 223; Decennial and Am. Dig. Key No. Series § 77. SIMMONS V. HENDRICKS, 43 N. C. 84. 1851. ,furis diction in Equity. "Tenants in Common with a Partial Division Blade bv the Donor." When Deeds and Wills Construed in Bills for Partition. [Bill in equity seeking a partition. Defendant demurred. Demurrer sustained. Plaintiffs appealed. Reversed. The facts appear in the opinion.] Pearson, J. The will of Tobias Hendricks contains this clause : "I will and bequeath unto my son Solomon 80 acres of land, the place on which he lives, getting his complement on the north side. I will and bequeath unto my daughter Mary, the remainder of the place, on which my son Solomon lives." Mary is the plaintiff, together with her husband and Alderd an alleged purchaser under them. Solomon is the defendant. The bill alleges that the tract Sec. 3.] REMEDIES IN SPECIAL CASES. 733 contains about 130 acres, and the defendant refuses to make a division by running a straight line across the traet so as to take off 80 acres for him on the north side, or to make one any other way. The prayer is that a partition may be made by a decree of this court. A demurrer was sustained in the court below. In this, there is error. It is said, this bill is an application to a court of equity to put a construction upon a devise; which, being purely a legal question, should be decided in an action of ejectment, and a court of equity has no jurisdiction. .We grant that a court of equity never has as- sumed jurisdiction simply to construe a devise, for it is in the nature of a conveyance. The title passes directly to the devisee. . . . But courts of equity have always taken jurisdiction in cases of partition, and if, in the exercise of that jurisdiction, it becomes necessary incidentally to put a construction upon a de- vise, there is no reason, when the court is constituted like ours, — that is, when both courts are held by the same judge — why the judge, sitting in a court of equity, should arrest the case, and send it to himself, sitting in a court of common law, for the purpose of obtaining a construction of the devise. This is every day prac- tice. If a case is in a court of equity, and it becomes necessary, in order to the decision, to say whether by a proper construction "the rule in Shelly 's case" (for instance) applies, that court pro- ceeds to determine the question, whether it be presented by a deed or by a devise. The amount of it is this. A court of equity will not take jurisdiction simply to put a construction on a deed or a devise, because that is a pure legal question. There is a plain rem- edy at law, and such an assumption, on the part of a court of equity, would break down all distinction between the two jurisdic- tions. But where a case is properlj^ in a court of equity, under some of its known and accustomed heads of jurisdiction, and a question of construction incidentally arises, the court will deter- mine it, it being necessary to do so, in order to decide the cause. The present is a case strictly of partition, and there is no rem- edy except in a court of equity; for, fifty actions of ejectment (supposing either party could maintain one) would not establish the dividing line, because there is in fact no such line; and none other but a court of equity can make the line, and this that court has jurisdiction to do, because there is no other remedy, and it is against conscience for the party to object to a division. But it is said, these parties are neither joint tenants, co-parcen- ers, nor tenants in common, and consequently this cannot be a question of partition. It is true, the parties are not strictly speak- ing tenants in common ; but they are in a similar relation towards each other ; neither has any part in severalty, and yet they own the whole tract to be divided between them. And in fact, their rela- tion is that of tenants in common between whom the devisor has made a partial division ; leaving it to be completed by their agree- ment, or otherwise by a court of equity, which is the only court that can "enforce the right." A devisor gives a tract of land to 734 REMEDIES IN SPECIAL CASES. [Ck. 9. be equally divided between two. They are tenants in common, strictly speaking. And he gives a tract of land to be equally divided between A and B; but B is to have the "upper part." Their relation is that of tenants in common with a partial division made by the devisor. Pie gives (as in this case) a tract of 130 acres of land to be divided between A and B; but B is to have 80 acres laid off on the north side, and A is to have the residue. Their relation is that of tenants in common with a partial division made by the devisor, providing that B 's share shall not only be on the north side, but shall contain 80 acres; and A shall have the remnant as his share ; without giving any beginning or course for the dividing line or the form of the land. The decretal order must be reversed, and this opinion be certi- fied. If the defendant, by his answer, admits the facts alleged, he will suggest the mode of division which he insists will be right. The court can then decide between the two modes of partition suggested; or he may refer the matter to the master, with direc- tions to have a survey and to report a scheme of division, together with the facts. To this report either party may except, and the question will thus be directly before the court. See also Wright v. Harris, 116 N. C. 462, 21 S. E. 914, and Harris v. Wright, 118 N. C. 422, 24 S. B. 751, for other cases of partition among "tenants in common with a partial division made by the devisor." See "Wills," Century Dig. § 1454; Decennial and Am. Dig. Key No. Series § 627. CRAIGHEAD v. PIKE, 58 N. J. Bq. 15, 22-25, 43 Atl. 424. 1899. Partition of Partnership Lands. Sale for Partition and Actual Parti- tion in Equity. Setting Apart the Share of One Tenant and Leav- ing the Residue to be Held in Common iy the Other Tenants. [Bill in equity for actual partition of lands held by several persons as co-partners in a land speculation. The lands consisted of vsrhat is known as Salt Marsh, and the main tract contained 2800 acres. The plaintiff's share was one sixty-fourth. The income from the lands was insufficient to defray the taxes and other expenses. The defendants resisted an actual partition upon various grounds, none of which need be stated except: (1) That it was contended that the lands should be sold in one body,, because such, it was contended, was the intention of the co-part- ners when the lands were purchased. The court held that such was not the intention — a conclusion arrived at upon the facts before the court; (2) That so small a share as one sixty-fourth could not be allotted to one co-owner without great prejudice to the other owners; (3) That it was impracticable to set apart one sixty-fourth of the land in sev- eralty. Decree for the plaintiff.] Pitney, V. C. . The rule in this country is well settled that lands held for partnership purposes will be considered as converted into personalty only to the extent necessary to pay the partnership debts. All lands remaining after that purpose is served are liable to be divided in specie by partition proceedings. So that the ease, under the view most favorable to the defendants' contention, stands thus ■ The complainant is entitled to have the Bee. 3.] REMEDIES IN SPECIAL CASES. 735 partnership enterprise wound up. Its assets in part consist of lands. There are no debts. Under those circumstances I can see no reason why she should not have her share set off to her in specie. Preem. Co-Ten. (2d ed.) §§ 118, 443; Shearer v. Shearer, 98 Mass. 111. Formerly the same rule prevailed in England, but latterly the disposition of the English courts has been to hold that land held bj^ partners for partnership purposes is converted absolutely into personalty, and must be disposed of as such upon dissolution. Probably the secret of this tendency of decision is the disposition of the English courts to avoid the injustice of the English canon of descent of real estate to the eldest son. The disposition of the law is against holding land to be perpetually free of the right of partition, and the courts have only held such freedom under pe- culiar circumstances and for limited periods. The leading case in this country is Coleman v. Coleman, 19 Pa. St. 100. That was a suit for the partition of the famous Cornwall ore banks and mine hills in Lebanon county. Pa., which were held under a peculiar agreement sanctioned by a decree made in the last century, and the decision against partition was put on the in- trinsic difficulty, if not impossibility, of making an actual parti- tion, and on the feasibility of the property being held in a sort of severalty according to the special agreement mentioned. Another case is one in England, of Peck v. Cardwell (decided by Lord Langdale in 1839) 2 Beav. 137. There land was bought by four persons and laid out into building lots under a special and partic- ular scheme by which the lots were to be sold for the benefit of all parties, and there was a provision for buying out the share of any one of the parties who desired to withdraw from the enterprise. The agreement is not fully set forth, and the question apparently not much debated or fully considered, the attention of counsel and court being devoted to another question arising in the cause. Neither of these cases covers the present. But. in the second place, the defendants allege, and offer proof tending to show, that these lands cannot be divided or even so small a share as 1-64 set off without great prejudice to the re- mainder. The theory of the defense is that it will be unfair to the great majority who desire to keep the whole premises in a body to take away even so small a portion. I have carefully considered all the evidence on that topic, and I am unable to accede to that contention. It seems to me that there can be no injury to the body of the tract by setting off 1-64, which will amount to only between forty and fifty acres. Parcels larger and smaller than that were sold voluntarily by the original joint proprietors, and without any undertaking on the part of the grantees to contribute towards the expense of sustaining the dikes. But it is further said that the value of the different portions varies so much that it will be im- practicable to set off to the complainant her part so that it will be in value just equal to 1-64 of the whole. Here, again, I am un- able to adopt that view. As we have seen, the land is traversed in many directions by railroads, turnpikes, and trolleys ; and it 736 BEMBDIES IN SPECIAL CASES. [Cll. 9. seems to me that there will be no difficulty in picking out forty or fifty acres or a tract of such size as in the judgment of three sensi- ble and intelligent commissioners will amount in value to 1-64 of the whole. For it must be remembered that the commissioners are not confined to laying off a plot which shall be in acres 1-64 of the whole and 1-64 in value. They may vary the size of the lot to make it in their judgment equal in value to 1-64 of the whole. Again, I think it would be a great hardship upon the complainant to compel her to submit to a sale of the whole premises in one block, and to take 1-64 of the proceeds. The Pikes and Tilneys have been trying for years to make a sale of these premises in one block, and proceedings in this partition were delayed from time to time upon the statement of counsel that a sale was about to be completed, and yet it never has been completed ; and if the prem- ises were decreed to be sold, as at present advised, I would not ad- vise a decree that they be sold in a body, but in reasonable parcels, so that each person holding a small share would be able to protect himself. Upon the whole case I think it but just to the complain- ant, and by no means unfair to the defendants, that she should have her 1-64 part set off to her. The defendants desiring not to have a partition among themselves, but to have the power to sell as they shall be advised, may have a decree to that effect, which may be enforced to suit their convenience. See also, for partition of co-partnership lands, Collins v. Dickinson, 2 N. C. 240, where it is held that a partition of such property is a mat- ter of right, which a court of equity will enforce; and Planner v. Moore, 47 N. C. 120, which holds that there will he no decree for the partition of such property unless and until all the partnership accounts have been adjusted between the members of the firm, and the clear interest of each partner ascertained; and, as a court of law cannot take such accounts, the jurisdiction for a partition of co-partnership lands must necessarily he in equity, whenever it is necessary to adjust the ac- counts before the respective interests of the several members can be as- certained. As to the jurisdiction in equity for partition of partnership realty, see 6 Pom. Eq. Jurisp. sec. 943; 30 Cyc. 184; 21 Am. & Bng. Enc. L. (2d ed.) 1154. See "Partition," Century Dig. §§ 37, 211-223; Decennial and Am. Dig. Key No. Series §§ 14, 77. NIXON v. LINDSAY, 55 N. C. 230. 1855. Contribution for Defects. Implied Warranty in Partition. Caveat Emptor. [Cause in equity removed to the supreme court, and heard there upon bill, answer and proofs. Decree for contribution and account. The bill in equity alleged that the plaintiff and defendants, being owners in common of certain slaves, had agreed that a partition thereof might be made by certain commissioners; that the commissioners so selected valued the slaves at the aggregate sum of $4,600, the share of each tenant in common being $1,150; that a division was made and two slaves, Gabriel and Mary, were set apart to the plaintiff at the respective values of $750 and $400; that Mary was sick at the time she was turned over to the plaintiff, but the commissioners and all the interested parties thought her malady was of no importance; that in fact Mary, at that Sec. 3.] REMEDIES IN SPECIAL CASES. 737 time, was afflicted with African consumption, of which she died two months thereafter; that plaintiff liad paid out a good deal of money in administering to the necessities of Mary. There were also charges of fraud and deceit, on the part of some of the defendants in putting off Mary upon the plaintiff, such defendants having knowledge of her con- dition and concealing it, etc. The bill prayed that the defendants be decreed to contribute pro rata to make good the plaintiff's loss by the death of Mary and the expenses incurred in attending to her while sick. The allegations, other than the charges of fraud, etc., were practically admitted by the answer.] Pearson, J. The bill contains an allegation that the defendants knew of the unsoundness of the slave, and fraudulently concealed it from the persons selected to make the division and from the guardian of the plaintiffs; and, by misrepresentation and false- hood, caused them to believe that she was laboring under tempor- ary indisposition, from want of sleep, etc., in attending at a sick bed. "Without passing upon the proofs, we put this allegation out of the case ; nor do we lay any stress upon the fact that the plain- tiffs were infants, and according to Lord Coke, are not bound by the partition, unless it be equal. Coke Lit. 171, a. The question is this : Tenants in common of slaves select com- missioners who make partition ; in the lot assigned to the plaintiffs is a girl, who, at the time of the division, was unsound, having an incurable disease called African consumption, of which she died about two months thereafter ; the tenants in common and the com- missioners had no knowledge of this unsoundness, and all sup- posed the girl's indisposition to be slight and temporary, and she was valued at $400 ; have the plaintiffs an equity for contribution ? The plaintiffs are entitled to contribution, upon the broad ground of substantial justice, expressed in the books by the maxim "equality is equity." This conclusion maybe supported upon two well settled principles : 1. In partition of chattels, which is an equitable proceeding, a warranty is implied, not only of title, hut of soundness ; and the connnon law maxim "caveat emptor" has no application, being restricted (as the word "emptor" imports) to sales of chattels. In the conveyance of a fee simple estate in land, no warranty is implied ; because there is no tenure. In partition of land, a war- ranty is implied; because of the privity of estate. In sales of chattels a warranty of title is implied; but there is iio implied warranty of soundness, the maxim of the common law being "ca- veat emptor;" because it was thought some "play" (as mechanics call it) ought to be allowed for the chaffering and exercise of in- dividual judgment, attendant upon the traffic in such articles when the parties are at "arm's length," and each is supposed to trade with his eyes open ; so that in the absence of an express war- ranty of soundness, the purchaser of a chattel has no remedy ex- cept on the ground of deceit. This maxim, however, was peculiar to the common law. The civil law enforced a more refined mor- ality, and acted on the rule, in the sale of chattels. ' ' a sound price implies sound property." The common law maxim was confined Remedies — 47. — 738 REMEDIES IX SPECIAL CASES. [Gh. 9. to sales, where, as \ve have seen, the parties are supposed to be at arm's length, and no authority or intimation in thebooks can be found, that it ever was supposed to extend to cases of partition. 1 Story's Eq. 221 ; 2 Kent, 479 ; 2 Buk. Com. 451. Upon partition, the parties are in equali jure ; there is supposed to be mutual con- fidence by reason of the privity of estate ; and the object is to make an equal division of a common fund. There is no chaffering or trafficking about it; third persons, selected by themselves, or ap- pointed by the court, make the division, and if the common fund is not as large as the parties suppose, either from defect of title, or of unsoundness as to part, the loss should be borne equally; in other words, in partition there is an implied warranty both as io title and soundess. 2. Where the parties act upon a mutual mistake as to a fact, equity will relieve, for the purpose of carrying the intention into effect. Here, the intention was to make a fair and equal division. In consequence of a mutual mistake as to a fact, i. e. the unsound- ness of one of the slaves, the division is grossly unequal; so that the share allotted to the plaintiff's is of less value than the other shares by more than one-third. Need any authority be cited to show that a court of equity will compel contribution in order to set the matter right, so that the loss may be divided? By way of familiar illustration : four boj's have four apples ; they divide ; one of the apples, although sound outside, is rotten at the core and not fit to be eaten ; will the others hesitate to make their comrade, who was so unfortunate as to get the rotten apple, equal, by each giving him a part of theirs ? The plaintiffs are entitled to contribution for the estimated value of the slave, and also for the necessary and reasonable ex- pense incidental to 'her last illness, and for loss of service; in re- gard to which there must be an account. See also Cheatham v. Crews, 88 N. C. 38, for an approval of the prin- cipal case and a further ruling that if, through mistake, a parcel of land be allotted to one of the parties at a valuation based upon an erroneous impression as to the number of acres it contains, such party can obtain compensation, in money, from the others. In adjusting such matters, the lost or deficient property is valued as of the time of the partition, and that value, plus interest to the time of contribution, is the amount the injured party is entitled to receive^ — less his share of the incidental loss. As to the jurisdiction and practice in partition of chattels, see Robinson v. Dickey, 143 Ind. 205, 42 N. E. 679, inserted post in this sec- tion. See "Partition," Century Dig. § 450; Decennial and Am. Dig. Key No. Series § 116. CLARENDON v. HORNBY, 1 Peere Williams, 446. 1718. Charges of Owelty to make the Partition Equal and Reasonable. TBill in equity for partition. Of the lands held in common, the plain- tiffs Bligh and wife owned two-thirds and the defendant one-third. The lands consisted of "a great house called Cobham House, and Cobham Park in Kent, and of farms and lands about it of 1000 pounds per an- num." The defendant Insisted on having allotted to him specifically a third of the great house and a third of the park.] 8ec. 3.] REMEDIES IN SPECIAL CASES. 739 Lord Chancellor Parkee. Care must be taken, that, the defend- ant Hornby shall have a third part, in value, of this estate; but there is no colour of reason, that any part of the estate should be lessened in value, in order that the defendant Hornby should have one third of it ; now if Mr. Hornby should have one third of the house and of the park, this would very much lessen the value of both. If there were three houses of different value to be divided amongst three, it would not be right to divide every house, for that would be to spoil every house ; but some recompense is to be made, either by a sum of money, or rent for owelty of partition, to those that have the houses of less value. It is true, if there were but one house, or mill, or advowson, to be divided, then this entire thing must be divided in manner as the. other side contend ; secus when there are other lands, which may make up the defend- ant's share. By the same reason, every farm-house upon the es- tate must be divided, which would depreciate the estate, and oc- casion perpetual contention; and it may be the intent of the de- fendant, when this partition is made, to compel the plaintiff to give the defendant forty years purchase for his third of the house and park. Therefore, since the plaintiff Bligh and his wife have two-thirds, I recommend it that the seat and park be allowed then, and that a liberal allowance out of the rest of the estate be made to the de- fendant, in lieu of his share of the house and park. See Rev. sec. 2491 and Pell's notes thereto; also Rev. sees. 2496, 2497. See "Partition," Century Dig. §§ 230-235; Decennial and Am. Dig. Key No. Series § 84. HALL V. PIDDOCK, 21 N. J. Eq. 311, 313-317. 1871. Betterments put on Common Property by One Tenant in Common. Equitable Partition. Adjustment of Rights when Betterments are Made. Sale for Partition. [Bill in equity to restrain partition proceedings at law and for parti- tion by the court of chancery. The cause was heard upon bill, answer, and proofs. Decree for the plaintiff. The bill, etc., showed that the plaintiff and defendants were tenants in common of an acre of land covered with buildings, which were erected by those from whom plaintiff derived his share — no part thereof having been erected by the defendants or those under whom they claim; the plaintiff owned an undivided three-fourths, and the defendants, one- fourth.] Zabriskie, Chancellor. . . The rule that a tenant in com- mon, who has made improvements on the land held in common, is entitled to an equitable partition, is well established, and is hardly disputed by counsel. The only good faith required in such im- provements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-ten- ants, or encumbering their estate, or hindering partition. The t^ct that the tenant making such improvements knows that an un- divided share in the land is held by another, is no bar to equitable 740 REMEDIES IN SPECIAL CASES. [Ch. 9. partition. No other want of good faith is alleged or contended for by the defendants in this cause. The peculiarities of an equitable partition are: (1) That .such part of the land as may be more advantageous to any yjarty on ac- count of its proximity to his other land, or for any other reason, will be directed to be set off to him if it can be done without in- jury to the others; (2) That when the lands are in several parcels each joint owner is not entitled to a share of each parcel, but only to his equal share in the whole; (3) That where a partition ex- actly equal cannot be made without injury, a gross sum or yearly rent may be directed to be paid for owelty or equality of parti- tion, by one whose share is too large, to others whose shares are too small, and, (4) That where one joint owner has put improve- ments on the property, he shall receive compensation for his im- provements, either by having the part upon which the improve- ments are, assigned to him at the value of the land without the improvement, or by compensation directed to be made for them. The doctrine as to allowance for improvements is laid down by Justice Story in Eq. Jur. sec. 655. It was recognized and acted on by the English Court of Exchequer in equity, in Swan V. Swan, 8 Price, 518 ; by the courts of New York, in Town v. Needham, 3 Paige, 553; St. Felix v. Rankin, 3 Bdw. Ch. 323; Conklin v. Conklin, 3 Sandf. Ch. 65, and Green v. Putnam, 1 Barb. S. C. 500; and by this court, in Brookfield v. Williams, 1 Green's Ch. 341 ; Obert v. Obert, 1 Halst. Ch. 397, and Doughaday v. Crowell, 3 Stockt. 201. In making the partition in this case, if any can be made without great injury, the share or one-fourth to be alloted to the defend- ants must, if practicable, be set off from such part of the premises as has no improvements upon it or improvements of small value, and must be equal in value, without improvements, to one-fourth of what would be the value of the whole land if it had no improve- ments upon it. I am not satisfied from the evidence that this tract cannot be partitioned in this manner without great injury. The report of the commissioners appointed by the Chief Justice, and his action in confirming it, do not affect the question as res adjudicata. There the direction was to divide the whole premises, including the buildings, into four equal shares, and to assign one share by lot to each of the original tenants in common. I am satisfied that the premises could not be divided in that manner without great prejudice to the owners. In examining the map annexed to the answer, I see that the northeast side fronts on a public road, and that on the northwest side of the tract a lot of ninety feet in front, with a depth which might be extended to two hundred and forty-five feet, being nearly one-half of the whole tract, has upon it only a granary and a shed. IE these are of small value, their value might be disregarded by consent of the complainant; or if they are, as seems probable, buildings that can be removed without much loss, the right to re- Sec. 3.] REMEDIES IN SPECIAL CASES. 741 move them within a reasonable time might be reserved to the com- plainant. Coupled with the right in equity to allow a proper amount as owelty to equalize the partition, the evidence, which consists mainly of the opinions of witnesses without regard to these matters, does not convince me that a partition cannot be made without great injury. It must, therefore, be referred to a master, to inquire into and report what would be the value of the whole tract if no improve- ments had been made upon it, and whether some part of the tract upon which no improvements have been made, or only improve- ments of small value or that can be removed without material loss, cannot be set off, which will be, without improvements, equal in value to one-fourth of the value of the whole tract so ascer- tained; or whether such part cannot be set off in that manner by allowing or charging a reasonable sum for owelty; and whether such partition can be made without great prejudice to the owners of the property, And further to inquire into and report what is the present value of the premises with the improvements now standing on them, and also what has been the yearly net value of the premises from April 1st, 1865, when the defendants acquired their title to the one-fourth of it. The defendants are entitled to such portion of the fourth of- the net proceeds of the premises as belongs to the land. The proper way to ascertain and apportion that is, to give to the land such proportion of the whole net yearly value, as the value of the land bears to the value of the whole premises, and to award one-fourth of it to the defendants. If it shall appear that the premises cannot be divided in the manner directed, a sale must be ordered, and out of the proceeds of the sale a proper allowance made for the value of the improve- ment put upon the premises. The part of the proceeds to be al- lowed for the improvements must be such proportion as the value of the improvements, that is the excess of the value of the whole over the value of the land, bears to the value of the whole premises. The cases of Conklin v. Conklin and Green v. Putnam are author- ity for such allowance out of the proceeds of the sale. In the last case. Justice Paige says: ""Where one tenant in common lays out money in improvements on the estate, a court of equity will not grant a partition without first directing an account and suitable compensation, or else in the partition it will assign to such tenant in common that part of the premises on which the improvements have been made. ' ' And he directs a reference to inquire into the value of the buildings, and by whom paid for, and the amount of rents and profits, and by whom received, so that in case a sale should be ordered the proper allowance might be made. . . See Holt v. Couch, 125 N. C. 456, 34 S. E. 703; Wetherell v. Gorman, 74 N. C. 603. See ch. 3, sec. 4, ante. See "Partition," Century Dig. §§ 236-239, Decennial and Am. Dig. No. Series § 85. 742 REMEDIES IN SPECIAL CASES. [Ch. 9. HERMAN V. WATTS, 107 N. C. 646, 651, 12 S. E. 437. 1890. Remedy for Collection of Owelty. [Action to recover a sum of money charged as owelty upon lands held by defendant at the time the action was brought. There was a prayer for judgment for a sale of the land unless the owelty were paid by a day to be fixed by the court. The defendant moved to dismiss the action upon the ground that plaintiff's remedy was by motion in- the cause in which the partition had been ordered and the owelty charged. Motion overruled. Verdict and judgment against the defendant. Defendant appealed. Reversed. Only so much of the opinion as disposes of the motion to dismiss, is here inserted.] Merrimon, C. J. . "Whatever may have been the method of procedure and practice in enforcing the charge of money upon the dividend of land of superior value to make equality in parti- tion cases, it is well settled, under the present method of civil pro- cedure, that it should be done by the writ of venditioni exponas, granted upon application by motion or petition in the proceeding made by the party or parties interested. Such method is orderly, prompt, and economical, and should be observed, unless in possi- ble cases involving complicated litigation. Waring v. Wadsworth, 80 N. C. 345; Halso v. Cole, 82 N. C. 161; Turpin v. Kelly, 85 N. C. 399 ; Dobbin v. Eex, 106 N. C. 444, 11 S. B. 260 ; Meyers v. Rice, 107 N. C. 66, 12 S. E. 66, and Ex parte Walker, 107 N. C. 340, 12 S. E. 136. . . . Upon the motion the issue as to pay- ment could have been raised easily, as in case of a motion for exe- cution upon a judgment that has become dormant, and the judg- ment debtor alleges that the judgment has been paid, or raises any other proper defense. The present method of civil procedure does not tolerate, much less encourage, unnecessary actions. Long v. Jarratt, 94 N. C. 443; Knott v. Taylor, 99 N. C. 511, 6 S. E. 788; Wilson V. Chichester, ante, 139 (decided at this term), and the cases there cited. The counsel for the plaintiffs insisted that the partition proceeding was ended, — that a final judgment therein had been entered, — and therefore the plaintiff could not have the remedy by motion therein. It is true that the rights of the parties had been settled, and the merits of the subject-matter of the pro- ceeding had been determined by a final decree, and no motion could be entered to disturb that decree unless for irregularity, but the final decree had not been enforced, and it was orderly and proper to take any appropriate steps in the proceedings subse- quent to that decree to enforce it. This is always done when need be. The final judgment must be enforced ordinarily in the pro- ceeding or action ; certainly in particular proceedings. We are therefore of opinion that the action should have been dismissed, and that the court erred in denying the motion to dismiss the same. To the end that the judgment may be reversed, and the motion to dismiss the action allowed, let this opinion be certified to the superior court. It is so ordered. For the law in North Carolina as to when a claim for owelty is barred by the statute of presumptions or the statute of limitations, see Smith Sec. 3.] REMEDIES IN SPECIAL CASES. 743 ex parte, 13"4 N. C. 495, 47 S. E. 16. For further rulings on the same subject, see Pell's Revisal sec. 2491 and notes. As to proceeding by sepa- rate action or by motion in the cause, see Townshend v. Simon, 38 N. J. L. 239, inserted at ch. 8, sec. 6, ante. See "Partition," Century Dig. § 233; Decennial and Am. Dig. Key No. Series § 84. ROBINSON V. DICKEY, 143 Ind. 205, 208-210, 42 N. E. 679. 1895. Partition of Chattels. Remedies of One Go-tenant of Chattels Against Another. [Action for partition of personal property. The complaint alleged that the plaintiff and defendant were tenants in common of $800 in cash and a stock of goods — -clothing, etc., worth $10,700 — all of which was in the possession of the defendant; that such property was capable of actual partition; that the defendant refused to divide, but excluded the plaintiff from any possession or control of the property; that the defendant was endeavoring to take all of the property out of the state and sell it; that the plaintiff was entitled to his share and to a division. Prayer for a division and the appointment of a receiver. The defendant Insisted that the complaint was insufficient in that it failed to allege a request that the defendant divide, and raised this point by demurrer. Demurrer overruled. A receiver was appointed and judgment rendered that the goods be sold for partition and the proceeds divided between the parties. Defendant appealed. Affirmed.] Monks, J. . . ^¥e thmk this paragraph of tlie complaint sufficient to withstand the demurrer. A co-tenant of personal property out of possession has no remedy at law against the ten- ant in possession, unless his dealing with same has been such as to amount to a conversion of the property by him. Each of the co- tenants is equally entitled to the possession of such property, and, if the possession of one excludes the other, this does not amount to a conversion. There is no liability at law, unless the co-tenant has been guilty of an actual or practical conversion, or an actual or practical destruction of the common property. Mills v. ilalott, 43 Ind. 248, 251 ; Bowen v. Eoach. 78 Ind. 361 ; Sehenck v. Long, 67 Ind. 579, 581, 582; Lowman v. Sheets, 124 Ind. 416, 425, 24 N. E. 351 ; Dain v. Cowing, 22 Me. 347 ; Oviatt v. Sage, 7 Conn. 95; Prans v. Young. 24 Iowa, 376; Conover v. Earl, 26 Iowa, 167; Russ'el V. Allen, 13 IST. Y. 173; Tripp v. Riley, 15 Barb. 334; 'Wil- son V. Reed, 3 Johns. 175 ; Nowlen v. Colt, 6 Hill, 461 ; Gilbert v. Dickerson, 7 Wend. 449 ; White v. O.sborn, 21 Wend. 72 ; Hyde v. Stone, 9 Cow. 230, 18 Am. Dec. 501, and note, 503. Freem. Part. §§ 287, 298, 426. It is well settled by the authorities that equity has exclusive jurisdiction of suits for the partition of personal property, even though the defendant denies plaintiff's title. God- frey v. White. 60 Mich. 449, 27 N. W. 593 ; Marshall v. Crow, 29 Ala. 279; Smith v. Smith, 4 Rand. (Va.) 102; Conover v. Earl, supra; Tinney v. Stebbins, 28 Barb. 290; Tripp v. Riley, 15 Barb 334; Forbes v. Shattuck, 22 Barb. 568; Swam v. Knapp, 32 Minn. 431, 21 N. W. 414; Crapster v. Griffith, 2 Bland, 5; Low v. Holmes, 17 N. J. Eq. 148; Spaulding v. Warner, 59 Vt. 646, 11 Atl. 186 ; Irwin v. King, 6 Ired. 219 ; Weeks v. Weeks, 5 Ired. Eq. 744 REMEDIES IN" SPECIAL CASES. [Cll. 9. 118 ; Edwards v. Bennett, 10 Ired. 363 ; Smith v. Dunn, 27 Ala. 316 ; Freem. Part. § 426 ; 17 Am. & Eng. Enc. Law, 681 ; 5 Wait, Act. & Def. p. 89, § 4; 6 Lawson, Rights, Rem. & Prae. § 2735. A law writer of eminent ability, spealting of the question under consideration, said that "the necessity of some remedy by which partition of this species of property could be compelled was much greater than in the ease of real estate; for real estate was suscep- tible of a common possession and enjoyment, and, in case of a total exclusion of either co-tenant, he had his remedy at law by an ac- tion of ejectment. The entire absence of any remedy at law in- duced courts of chancery to take jurisdiction of actions for parti- tion of personal property. At what time or under what circum- stances this jurisdiction was first assumed we are unable to state, but that it exists and ■(\as exercised by the courts of chancery both in England and in the United States is imdisputed. " Preem. Coten. § 426. In Tinney v. Stebbins, 28 Barb. 290, the court said : ' ' A court of equity is competent to give relief in such cases by de- creeing partition of the property, or a sale thereof where partition is impracticable, and a division of the proceeds. The powers of a court of equity were conferred and exist to meet just such cases where no adequate remedy exists at lavi'." It follows that the court did not err in overruling the demurrer to the second para- graph of complaint. . . There is no available error in the record. Judgment affirmed. For jurisdiction in equity for partition of chattels, see Nixon v. Lind- say, 55 N. C. 230, inserted ante in this section. For the liability of one tenant in common to another in trover, see Wlaller v. Bowling, 108 N. C. 289, 12 S. E. 990, 12 Li. R. A. 261, and notes. For statutory provisions in North Carolina reflating partition of chattels by special proceedings before the clerk of the superior court, see Revisal, sees. 2504-2505. For further rulings as to remedies of tenants in common of chattels against each other, see Pell's notes to Revisal, sees. 2504-2505. See "Partition," Century Dig. §§ 149-156; Decennial and Am. Dig. Key No. Series § 55. The cases inserted in this section illustrate the general princi- ples of the remedy by partition. The matter is to a great extent regulated by the statutes of the several states. There have been important amendments to the North Carolina statutes since the decisions above selected were made. See Pell's Revisal, §§ 2485- 2520, and notes. For a general discussion of the remedy by parti- tion, see 6 Pom. Eq. Jurisp. §§ 701-722. Sec. 4. Sale of Re.\.l Estate and Oi-iattels Belonging to Infants. GOODMAN V. WINTER, 64 Ala. 410, 38 Am. Rep. 13. 1879. Jurisdiction of Equity Courts. WTiat Estates may lie Sold. What Cir- cumstances Will Justify a Sale. [In the opinion is the following discourse on the sale of realty and personalty belonging to infants.] Brickell, C. J. It is insisted that a court of equity, being without jurisdiction to decree a sale of the lands of an infant, is Sec. 4.] REMEDIES IN SPECIAL CASES. 745 ^Yithout jurisdiction to ratify or confirm an unauthorized sale of his lands by a guardian or trustee, or by a stranger intruding him- self into the relation of either ; and that no estoppel can be raised against them. "Whatever may be the doctrine prevailing in the court of chancery in England, or whatever contrariety of opinion, or of doubt, may prevail in the different states a.s to the jurisdic- tion of a court of equity to decree a sale of the real estate of an in- fant, in this state the jurisdiction must be regarded as existing. Ex parte Jewett, 16 Ala. 410 ; Rivers v. Durr, 46 Ala. 418. The jurisdiction does not spring from, nor is it dependent upon, the character of the estate — whether absolute or contingent; whether in possession, or the possession postponed until the happening of a future event. It rests upon the power and duty of the court to protect infants — to take care of, and preserve their estates while under disability debarring them from the administration of prop- erty. The courts would be more reluctant to decree the sale of an estate in remainder, or of a contingent estate, lest it might operate a sacrifice of the interests of the infant ; but the jurisdiction exists, though it may be more seldom and more sparingly exercised. It may be that the infant has no other source from which mainte- nance and education can be derived. Or, it may be the estate is deteriorating in value, without fault or neglect on the part of the tenant of the particular or prior estate, and that the deterioration will continue, so that when the preceding estate expires, it will be, if not valueless, of greatly less value than when the court is re- quested to order a sale. A sale is then necessary for the mainte- nance and education, or to conserve the interests of the infant, and it has been the practice of the courts of chancery in this state to decree it. . . . The reasons controlling the English court of chancery for repu- diating jurisdiction to decree a sale of an infant 's real estate, seem to have been, that on the death of the infant, the course of descent might have been interrupted ; and if converted into personal prop- erty, he could, during minority, bequeath it. The first reason could never have been of force in this state, as the same persons who would take real estate by descent, as heirs, would take per- sonal property, as next of kin under the statute of distribution. Each reason subordinates the necessity and interest of the infant, while living, to that of those who would succeed to the estate on his death ; while with us, the court looks only to the care, protec- tion, and advantage of the infant. 2 Perry on Trusts, sec. 605. In England, real estate may be of fixed and certain value, and the better investment for infants or other persons resting under dis- ability. The courts here are admonished that real estate is fluctu- ating in value, and often in some kinds of personal property in- vestments are of more certain value, yielding a larger and more reliable income. There seems no substantial reason for distin- guishing here between the power of a court to decree a sale of real and of personal property; and in practice none has been recog- nized. 746 BEMEDIES IN SPECIAL CASES. [Ch. 9. See, for a full discussion of this remedy, the proper practice, etc., Sutton V. Schonwald, 86 N. C. 198; Mordecai's L. L. 406-408; 20 L. R. A. 247; 21 Cyc. 119. For the sale of an estate of a non compos mentis, see Dodger v. Cole, 97 111. 338, 37 Am. Rep. Ill; In re Propst, 144 N. C. 562, 57 S. B. 342. See "Infants," Century Dig. § 66; Decennial and Am. Dig. Key No. Series § 33. COPPIELD V. McLBAN, 49 N. C. 15. 1856. Statutory Proceedings to Sell Realty of an Infant to make Assets for Payment of Debts. [Ejectment by an infant whose land had been sold by order of court. Judgment against defendant and he appealed. Affirmed. The defendant held under a sale made by order of court in a proceed- ing instituted by the plaintiff's guardian. The petition of the guardian set forth that his ward was "indebted to the amount of $216 and up- wards; " that the guardian had no assets in hand with which to pay such debts nor was there enough personalty belonging to his ward to dis- charge such debts. The question before the court in this action of eject- ment was as to the sufficiency of the proceedings and the validity of the sale of the plaintiff's land.] Pearson, J. The sale was void, because it does not appear that the county court passed on and ascertained the fact, that there was a debt of demand against the estate of the ward. Spruill v. Davenport, 48 N. C. 42 ; Pendleton v. Trueblood, 48 N. C. 96. But there is another fatal objection. The petition does not allege that there was a debt or demand agahist the estate of the ward. The allegation is, that the ivard is indebted to the amount of $216, and the guardian has no assets, and there is no personal property out of which the debt can be paid. There is a "material difference be- tween a personal debt of the ivard and a debt against the estate of the ward — i. e., a debt of the ancestor, for which the land of the ward is liable. It is manifest, by a periisal of it, that the statute under which this proceeding was had (Rev. Stat. ch. 63) is, as its title shows, "A mode of subjecting the land of deceased debtors to the payment of their debts," and consequently does not extend to personal debts contracted by. or on account of, infants. At com- mon law, an heir, sued for the debt of his ancestor, might pray the parol to demur until he arrived at full age. The statute changes this by substituting a provision, that no execution shall issue against the lands of heirs, who are under age, until after the expiration of one year, during which time, it is the duty of guard- ians, under the 11th section of the act, to apply for an order of sale. Tt was stated at the bar, that the debt for which the land was sold, was contracted in prosecuting or in defending a suit for or against the infant. So, it was not a debt of the ancestor, but^was a personal debt of the ward ; and the defendant 's title is bad, not for a mere omission of the proper entries by the court, but upon the merits, because upon the facts, the county court had no power to order a sale. There is no error. Judgment affirmed. See "Guardian and Ward," Century Dig. § 342; Decennial and Am. Dig. Key No. Series i 86. Sec. 4.] REMEDIES IN SPECIAL CASES. 747' IN RE DICKERSON, 111 N. C. 108, 15 S. E. 1025. 1892. Statutory Proceeding to Sell Realty Belonging to an Infant for Change of Investment, or the like. Proper Practice. Reference to Ascer- tain if Sale 6e Proper or Necessary. Report ana Confirmation of Sale. [Motion in the cause to vacate an order of sale, and to set aside a sale of land made thereunder and to restore the land to its original owner, lola Dickerson, an infant. At the same time the assignees of the pur- chaser made a counter motion for the confirmation of the sale. The sale had been made under a special proceeding before the clerk of the su- perior court, and the above motions were made before the clerk. The clerk refused the motion to vacate and set aside the sale, but granted the motion to confirm the sale. lola Dickerson appealed to the judge of the superior court. The judge overruled the clerk, and ordered a re sale of the land. From this order of the judge, the Bells, who were the assignees of the purchaser, appealed. Modified and aflirmed. In Dec. 1882, the guardian of lola Dickerson filed a petition. In her name, before the clerk, asking for an order to sell her interest in 160 acres of land belonging to her and to Solomon Fisher, as. tenants in common. The reason assigned for requesting such sale was, that the ward's interests yielded no income because the land was in woods, etc., and that the taxes were in arrears some five or six years because there was no income, etc., out of which to pay such taxes. The petition stated that the guardian had been offered $125 for his ward's share in the land. The prayer for relief was, that the guardian be empowered to sell the ward's interest In the land and apply the proceeds to the ward's maintenance and education. Upon this ex parte application it was or- dered by the clerk that the guardian "make a deed to the purchaser for said land upon payment of the purchase money. . . . That said land shall first be advertised, etc., prior to said sale and that no bid less than $125 be received therefor." This order was approved by the judge of the superior court; a sale was made thereunder to Samuel S. Willis; and the guardian made a deed to him for the ward's interest in the land. Willis conveyed his interest to another person, and it finally became the property of the Bells. There was no order confirming the sale. The infant's interest was worth about $300 at the time it was sold for $125.] MacRae, J. It is contended by the counsel for the appellant that the order of sale made by the clerk and approved bj' the judge December 23, 1882, was a final decree, and that there was no need for a confirmation of the sale ; it being admitted upon the argu- ment, though it does not so appear in the case or in the record, that the interest of the petitioner brought $130 at the sale, this sum being more than the sum named in the petition as a fair price, and in the order as the lowest bid which should be received. If this contention were correct, if by a proper construction of the order of sale, directing a deed to be made "to the purchaser for said land upon the payment of the purchase money by said pur- chaser, ' ' we were required to hold that the price was fixed at any sum not less than $125, and the sale confirmed in advance at such price, — we could do no otherwise than hold the decree to be final and the parties bound. But, impressed as we are by the extreme looseness of the whole proceeding, it is a relief to us to be able, upon examination of the order and of its approval, to hold it evi- ^i8 REMEDIES IN SPECIAL CASES. [CIl. 9. dent that the judge who approved it intended that there should be a public sale, and that no bid should be entertained for a less sum than $125, and that it should take the regular course in such proceedings, that it might be ascertained whether the land sold for a fair price, before the judgment should be made confirming the sale. We ma>', with profit, reproduce, as applicable to the present case, the remarks of the venerable Chief Justice Ruffin in Harrison v. Bradley, 40 N. C. 136: "The court cannot forbear expressing a decided disapprobation of the loose and mischievous practice adopted in this case of decreeing the sale of an infant's land upon ex parte affidavits offered to the court, without any reference to ascertain the necessity and propriety of the sale and the value of the property, so as to compare the price with it. The court ought not to act on mere opinions of the guardian or wit- nesses, but the material facts ought to be ascertained and put upon the record, either by the report of the master or the finding of an issue ; and, after a sale, it ought to appear in like manner to be for the "benefit of the infant to confirm it. Otherwise, there is great danger of imposition on the court, and much injury to in- fants." As was said by the present chief justice, delivering the opinion in Morris v. Gentry, 89' N. C.248: "It is the duty of courts to have special regard for infants, their rights and interest, when they come within their cognizance ; ' ' and, in the exercise of this duty, nothing but clear internal evidence of a confirmation of this sale should induce us so to construe the order. The sale, then, not having been confirmed, the commissioner's deed has not yet divested the title out of the petitioner. The proceeding is still pending. The petitioner is still an infant, and she has a right to be heard upon the report of sale and the motion for con- firmation, and to move to set aside the sale for inadequacy of the sum bid for the land. Foushee v. Durham, 84 N. C. 56. While a formal direction to make title is not always necessary, a confirma- tion of the sale cannot be dispensed with. Mebane v. Mebane, 80 N. C. 34; Latte v. Viekers, 82 N. C. 501 ; Brown v. Coble, 76 N. C. 391; England v. Garner, 90 N. C. 197. We concur in the view of his honor upon his finding of fact that said sale had not been made for a fair price ; that a resale should be ordered, provided it shall be made to appear, as required in section 1602 of the Code, that the interest of the ward would be materially promoted by a sale of her interest in said land, and that report of sale to be made to the court. Dula v. Seagle, 98 N. C. 458, 4 S. B. Rep. 549. As it was admitted that the pur- chaser, S. S. Willis, paid the purchase money, and took a deed for said land from the guardian, and that said Willis conveyed the land for value to R. W. Bell, who is now dead, and whose interest in said land is now vested in W. R. and J. N. Bell, the appellants, it will be proper that an account be taken of the amount paid to the guardian by said Willis, and of the rents and profits of said land since said attempted sale, and the possession of said Willis and those claiming under him; and that the balance of the sura Sec. 5.] EEMBDIBS IN SPECIAL CARES. 7-49 SO paid, after deducting the sum ascertained to be due for rents and profits, be a charge upon the fund arising from the sale now ordered in favor of the appellants. Modified and affirmed. See further as to the proper practice in such proceedings and es- pecially as to the propriety of a reference to ascertain the facts, etc., relating to the necessity or propriety of selling, In re Propst, 144 N. C. at p. 567, 57 S. E. 342. The sale of an infant's realty is regulated by statute in North Caro- lina. See Pell's Revisal, sees. 1798-1801, and notes, which give clear information upon all points. For the sale of timber, see sec. 1790, and for sale of chattels, sees. 1787, 1791, of Pell's Rev. See also, for the practice in such proceeding, Mordecai's L. L. 406-408. See "Guardian and Ward," Century Dig. §§ 349, 379, 396; Decennial and Am. Dig. Key No. Series §§ 90, 103, 108. Sec. 5. Inquisition of Lunacy, hughes v. jones, 116 n. y. 67, 73-77, 22 n. e. 446. 1889. Jurisdiction and Practice in Equity. Acts of the Lunatic after Adju- dication. Estoppel by the Adjudication. Scope of the Inquiry. [Action by the heir of Richard Hughes to set aside a deed executed by him to the defendant Jones, and a mortgage made by Richard Hughes and Jones to Caroline Root whose executors were also defendants in the action. The plaintiff was the son of Richard Hughes and caused his father to be imprisoned for debt. In order to have him released, the defendant instituted proceedings to have Hughes declared a lunatic. A commission was issued from the county court which resulted in an ad- judication that Hughes was a lunatic incapable of governing himself or managing his estate. The inquisition further found that Hughes had been in such condition for five or six years previous to the inquisition. Thereafter a committee was appointed by the court for the estate of Hughes. The inquisition and the appointment of the committee took place in 1871. The deed to Jones, which is attacked in this action, was made in 1870 — about a year before the inquisition of lunacy. The mortgage attacked was made by Hughes and Jones in 1874 — about three years after the inquisition. There was evidence tending to show that Hughes was not a lunatic, but, on the contrary, was fully capable of attending to his affairs, when the deed was made in 1870. The plaintiff objected to such evidence, but his objection was overruled. The plaintiff had put in evidence the record of the inquisition, and he also introduced other evidence tending to show that Hughes was a lunatic when the deed was made. The court found that Hughes was sane when he made the deed, and gave judgment against the plaintiff dismissing his action. Plaintiff appealed. AflSrmed. As Jones, the grantee in the deed attacked in this action and a de- fendant, had been instrumental in bringing about the inquisition of lunacy — he having joined with another person in the petition for such inquisition — and as the inquisition had found that Hughes was a lunatic at the time the deed in question was executed, i. e. the deed from Hughes to Jones, made prior to the inquisition — the plaintiff Insisted that Jones was estopped, by the proceedings upon the inquisition, to deny that Hughes was a lunatic when the deed was made.] Vann, J. On the trial of this action, the court found as a fact. upon a conflict of evidence, "that said Richard Hughes, at the time of the execution and delivery of the said deed, . was 750 REMEDIES IN SPECIAL CASES. [Gh. 9. mentally competent to execute the same; that said deed was not executed by said Richard Hughes through force, fraud, or undue influence imposed upon him by said defendants, . . or any or either of them, but the same was the free and voluntary act and deed of said Richard Hughes." It is conceded that there was sufficient evidence to sustain this finding, unless the record in the lunacy proceedings was conclusive evidence, and hence the facts found by the jury therein are incapable of contradiction by the defendants in this action. All contracts of a lunatic, habitual drunkard, or person of unsound mind, made after an inquisition and confirmation thereof, are absolutely void until by permission of the court he is allowed to assume control of his property. L 'Amoureux v. Crosby, 2 Paige, 422 ; Wadsworth v. Sharpsteen, S N. Y. 388 ; 2 Rev. St. (6th ed.) 1094, § 10. In such cases the lu- nacy record as long as it remains in force, is conclusive evidence of incapacity. Id. Contracts, however, made by this class of per- sons before office found, but within the period overreached by the finding of the jury, are not utterly void, although they are pre- sumed to be so until capacity to contract is shown by satisfactory evidence. Id. ; Van Deusen v. Sweet, 51 N. T. 378 ; Banker v. Banker, 63 N. Y. 409. Under such circumstances, the proceedings in lunacy are presumptive, but not conclusive, evidence of a want of capacity. The presumption, whether conclusive or only prima facie, extends to all the world, and includes all persons, whether they have notice of the inquisition or not. Hart v. Deamer, 6 Wend. 497 ; Osterhout v. Shoemaker, 3 Hill, 513 ; 1 Greenl. Ev. § 556. These principles are now well settled in this state, and no question could have arisen as to the right of the de- fendants to show that the grantor, at the time the conveyance in question was executed, was of sound mind, but for the fact that the grantee was the petitioner in the lunacy proceedings. It is claimed that he therebj' became a technical party to the record, as that expression is commonly understood in law, and hence that he is so completely bound by the finding of the jury as to be pre- cluded from attempting to show the actual truth. This point does not appear to have been passed upon by the courts, although there are dicta of learned judges bearing somewhat upon it. A party is ordinarily one who has or claims an interest in the subject of an action or proceeding instituted to afford some relief to the one who sets the law in motion against another person or persons. Inter- est, or the claim of interest, is the statutory test as to the right to be a party to legal proceedings, almost without exception. Unles.s a party has some personal interest in the result, he can have no standing in court. But any one, even a stranger, can petition for a commission to inquire as to the sanity of any other person within the jtirisdiction of the court. While this is now provided by stat- ute, it was also the rule at common law, although a strong case was required if the application was not made by some person standing in a near relation to the supposed lunatic. Code Civil Proc. Sec. 5.] REMEDIES IN SPECIAL CASES. 751 § 2323 ; In re Smith, 1 Russ. 348 ; In re Persse, 1 Moll. 439 ; Shelf. Lun. 94 ; 2 Crary, Pr. 5 ; Ordr. Jud. Ins. 218. The origin and history of lunacy proceedings throw some light ■upon the subject. It was provided by an early statute in England that ' ' the king shall have the custody of the lands of natural fools [idiots] , taking the profits of them without waste or destruction, and shall find them in necessaries, of whose fee soever the land be holden ; and after their death he shall restore them to their right- ful heirs, so that no alienation shall be made by such idiots, nor their heirs be in any wise disinherited." 17 Edw. II. c. 9. The same statute provided for lunatics, or such as might have lucid in- tervals, by making the king a trustee of their lands and tenements, without ajiy beneficial interest, as in the case of idiots, who were the source of considerable revenue to the crown. Id. c. 10 ; Bev- erley's Case, 4 Coke, 127; 1 Bl. Comm. c. 8, § 18, p. 304. This statute continued in force from 1324 until 1863. Ordr. Jud. Ins. 4. The method of procedure thereunder is described by an early writer as follows: "And therefore, when the king is informed that one who hath lands or tenements is an idiot, and is a natural from his birth, the king may award his writ to the escheator or sheriff of the county where such idiot is, to inquire thereof." Fitzh. Nat. Brev. 232. The object of the writ was to ascertain by judicial in- vestigation whether the person proceeded against was an idiot or not, so that the king could act under the statute ; for his right to control idiots or lunatics and their estates did not commence until office found. Shelf. Lun. 14. Subsequently, authority was given to the lord chancellor to issue the writ or commission to inquire as to the fact of idiocy or lunacy, and the method of procedure was by petition suggesting the lunacy. Id. ; In re Brown. 1 Abb. Pr.. 108, 109. It was the ordinary writ upon a supposed forfeiture to the crown, and the proceeding was in behalf of the king, as the political father of his people. Id. ; Fitzh. Nat. Brev. 581. As the means devised to give the king his right by solemn matter of rec- ord, it was necessary before the sovereign could divest title. 3 Bl. Comm. 259 ; Phillips v. Moore, 100 U. S. 208, 212 ; And. Law Diet, tit. "Office Found." It was used to establish the fact upon which the king's rights depended, as in the case of an alien, who could hold land until his alienage was authoritively established by a public officer, upon an inquest held at the instance of the govern- ment. Whether the basis of action was infancy, or alienage, or otherwise, the proceeding was in behalf of the public, represented by the king. Id. The inquisition was an inquiry made by a jury before a sheriff, coroner, escheator, or other government officer, or by commissioners specially appointed, concerning any matter that entitled the sovereign to the possession of lands or tenements, goods or chattels, by reason of an escheat, forfeiture, idiocy, and the like. Chit. Prerog. 246, 250; Staunf. Prerog. 55; Rap. & L. Law Diet. tit. "Inquest of Office." Thus the law came to us from England; and after the Revolution the care and custody of per- 752 REMEDIES IN SPECIAL CASES. [Ch. 9. sons of unsound mind, and the possession and control of their es- tates, which had belonged to the king as a part of his prerogative, became vested in the people, who by an early act confided it to the chancellor, and afterwards to the courts. Laws 1788, c. 12; 2 Greenl. Ev. 25; Laws 1801, c. 30; Laws 1817, c. 32; 1 Rev. Laws. 147; 2 Eev. St. 52. But, while the same power was confided, the practice or method of exercising that power was not regulated by the legislature; so that almost of necessity the English course of procedure was followed. In re Brown, supra. For nearly a century there was no statute a.uthorizing any court or officer to issue a commission of inquiry, except as the right to judicially ascertain who were lunatics, etc., was implied from the acts committing their care and custody at first to the chancellor, and later to the supreme court. The right to judicially learn whether a person was a lunatic or not was inferred from the right to his care and custody, provided he was such. Thus it appear.^ that these proceedings have always been instituted in behalf of the public ; at first in behalf of the king, as the guardian of his sub- jects, and then in behalf of the people of the state, who succeeded to the rights of the king in this regard. In both countries the the- ory of the proceeding was the same, resting upon the interest of the public, as is apparent from an examination of the various statutes and decisions upon the subject already cited. That in- terest is promoted by taking care of the persons and property of those who are unable to care for themselves, and, by preserving their estates from waste and loss, preventing them and their fami- ilies from becoming burdens upon the public. The inquisition is an essential step, preliminarj'' to assuming control. It is a judicial . determination that the person proceeded against is one of the class of persons whose care and custody has been delegated to the courts by the public. Although it involves the forfeiture or suspension of civil rights over person and property, it acts upon the status of the individual only. All the other results follow the judicial decision that the status of the alleged lunatic has changed from soundness to unsoundness of mind. It is then, and only then, that the courts assume control, which they exercise through their own appointee, who is subject, at all times, to their orders. The whole world is bound by the inquisition, and no one, unless it is the luna- tic himself, more than another. The law is set in motion by in- formation, of a more or less formal character, spread before the court, not by a party, but, as in a criminal prosecution, by some' one who assumes to act in the matter. "While the petitioner in rare cases has been required to pay costs, it was because he. acted in bad faith towards the court by calling upon it to act when he knew that there was no ground for action. For the same reason, Lord Bldon required the brothers and sisters of a supposed lunatic, who could not be considered parties in any sense, to pay the costs occa- sioned by their opposition to a petition for a commission of lunacy, presented by strangers to the family. In re Smith, supra. The primary object of the proceeding is not to benefit any particular Sec. 5.] REMEDIES IN SPECIAL CASES. 753 individual, but to see whether the fact of mental incapacity exists, so that the public, through the courts, can take control. The pe- titioner can derive no direct benefit from it. The advantage to him, if any, is only such as would result if any other person had first acted in the matter. Attentive study of the history, nature, and object of lunacy proceedings leads to the conclusion that the petitioner therein is not a party to the record so as to be personally estopped by the finding of the jury, except as all the world is es- topped. We also agree with the learned general term in its conclusion that the title to land was not involved in the proceeding under con- sideration, and that a commission to inquire as to the mental status of an alleged lunatic has no power to settle any such question. Such a tribunal is not adapted to so important an inquiry. It is not constituted for such a purpose, but simply to inform the con- science of the court as to a particular fact, for a special purpose. It would have no pleadings to guide it. No distinct issue upon the subject could be presented. It Would be only incidental to the main question, which relates to existing incapacity. When that is found, the care of the person and estate belongs to the court. Un- less that is found, the court has no further jurisdiction, whatever else may be found. No other inquiry can become material except from its relation to that question. The command of the commis- sion is to inquire whether the person is a lunatic, and, if so, from what time, in what manner, and how. The period of the inca- pacity is of no importance, unless it includes the present time. The secondary character of the inquiry as to duration is evident from the fact that, if the jury find the alleged lunatic to be of sound mind, they have no power to pass upon any other question, even if they are of the opinion that he has been insane. More- over, the petitioner would not be allowed to control the proceed- ing by a settlement or discontinuance, or by submitting to a non- suit, except by permission of the court, which could allow any one to continue if he abandoned it. Shelf. Lun. 22. The difficulty of correcting errors by appeal or review is obvious. In fine, such a method of determining the title to real estate is opposed to the theory and policy of the law, which surrounds landed property with so many safeguards. We think that the validity of the deed in question was not at issue, and that it could not properly be tried in the lunacy proceeding. The judgment should be affirmed, with costs. For remedies at law and in equity to attack a deed of an insane per- son both before and after an adjudication of insanity, see 19 L. R. A. (N. S.) 461, and note; see also note to the next succeeding case. The briefs of counsel printed in the volume with the principal case furnish much valuable information and cite many authorities. See "In- sane Persons," Century Dig. §§ 36, 153; Decennial and Am. Dig. Key No. Series §§ 26, 89. Remedies — 48. 754 REMEDIES IN SPECIAL CASES. [CJl. 9. IN RB BLBWITT, 131 N. Y. 541, 30 N. E. 587. 1892. Practice under Modern Statutes. [Motion of James Blewltt to vacate and set aside a commission and proceedings In lunacy, whereby he had been declared insane, and to revoke the appointment of a committee of his person and estate. The ground of the motion was, that no notice of the proceedings in question had been served on James Blewltt, the mover, and other alleged irregu- larities in the proceedings. He also moved, as an alternative, that an issue be submitted to a jury to try the fact of lunacy, etc. The court refused to vacate the proceedings, but directed the suggested issue to be tried by a jury. Blewltt appealed. Affirmed. The lunacy proceedings were commenced in June, 1890, upon the peti- tion of Blewitt's wife, supported by the affidavit of a physician. Upon the presentation of the petition and the affidavit, the court ordered a commission to issue to three persons "to inquire into the matters set forth in the petition," and also as to the nature and value of Blewitt's estate. The commissioners were also ordered to cause a jury to be sum- moned to pass upon the sanity of Blewltt, and to give notice to Blewitt himself, and to his wife and sons, of the time and place of the execution of the commission. The wife and sons were notified accordingly. The inquisition was executed on June 23, 1890, and resulted in finding that Blewitt was "an insane person with lucid Intervals," but not competent to attend to his personal or business affairs. There was no formal con- firmation of the inquisition, but on June 25, 1890, Blewitt's wife was appointed the committee of his estate and person. There was nothing in the record or proofs to show that Blewitt, the alleged lunatic, had ever been served with any notice of the proceedings. It was sworn by Blewitt that the first intimation he had that any such proceedings had been taken, was in November, 1890; but his wife swore that a written notice of the date set for executing the commission, had been directed to him and received by her, and that on June 22nd, she had told him of the pendency of the proceeding, and that the hearing would take place next day, at the court house, at 4 o'clock. She further swore that such was Blewitt's condition — mental and physical — at the time she gave him this information, that she doubted if he understood its purport. Some time previous to this motion, Blewitt had made a motion before Mr. Justice Ingraham to supersede the commission in question and the proceedings thereunder, on the ground that he had recovered his reason and "is now (at the date of that motion) of sound mind and understand- ing." After hearing much evidence on both sides. Judge Ingraham denied the motion. Thereafter Blewitt made the motions in controversy in this appeal.] Andrews, J. The jurisdiction which formerly was vested in the chancellor, over the person and estate of lunatics, is now exer- cised by the supreme court. But the supreme court exercises the power under the same rules as appertained to and regulated the jurisdiction of the chancellor, subject to such statutory provisions on the subject as are contained in the Code of Civil Procedure. Code, § 2320 ct seq. The power of the court to appoint a com- mittee of the person and estate of a lunatic is very essential, but it should be exercised with scrupulous regard to the rights of the alleged lunatic, and under the protection which attends other judi- cial proceedings affecting person or property, modified only so far as the peculiar nature of the inquiry and the condition of the al- leged lunatic may render modification necessary. The fact of Sec. 3.] REMEDIES IN SPECIAL CASES. 755 lunacy must be ascertained judicially before the court can deprive the lunatic of the custody of his estate, or submit his person to the control of a committee. The proceeding for the appointment of a committee is no exception to the rule that the person pro- ceeded against must have notice of the proceedings, to give valid- ity to an adjudication against him. Where the lunacy is of such a character as to wholly deprive him of his understanding, and this is made to appear to the court on the initiation of the pro- ceedings, it was the practice in chancery for the chancellor to di- rect notice of the proceedings to be served on some relative or some other person, in order that opportunity might be afforded to protect the interests of the alleged lunatic. The Code now pre- scribes that in all eases the court must require notice to be given of the presentation of the petition in lunacy proceedings to the husband or wife, or to one or more relatives, or to an officer speci- fied, unless sufficient reasons are set forth in the petition or accom- panying affidavits for dispensing with such notice. Code, § 2325. This section does not touch the question of the right of the al- leged lunatic to have notice also. It was said by the chancellor in Ke Tracy, 1 Paige, 580, that, if there "were any peculiar cir- cumstances in the ease which rendered it improper or unsafe to give notice to the party, as in some cases of furious madness, the facts should be stated in the application to the court, so that a pro- vision might be inserted in the commission dispensing with the necessity of notice. ' ' In our opinion, a very clear case should be made before the court should proceed in lunacy proceedings, in the absence of actual personal and written notice to the party, and that, unless such a case is made by the petition or affidavits, and an order made by the court dispensing with personal notice and providing for notice to relatives or others in lieu of personal no- tice, an adjudication, in the absence of such notice, should be set aside. The cases must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in addition to notice to relatives and others, as requijred by section 2325 of the Code. Attempts by in- teiested persons to get control of the person and property of an- other by the aid of lunacy proceedings, or proceedings on the ground of habitual drunkenness are not infrequent, and no pre- caution should be omitted which may apprise the party of the proposed action, and enable him to appear and defend. The au- thorities and text-writers assume that the party proceeded against should have notice of the time and place of executing the commis- sion. In re Tracy, supra ; In re Petit, 2 Paige, 173 ; Chase v. Hath- away, 14 Mass. 222; 2 Barb. Ch. Pr. 231. In the present case there was no ground presented in the peti- tion why the alleged lunatic could not be served with notice, and, as his insanity weis with lucid intervals, there is no reason for sup- posing that notice would have been useless. We are of opinion that the proceeding and adjudication were invalid for want of 756 EEMEDIES IN SPECIAL CASES. [Gh. 9. notice to the party. The statement of Mrs. Blewitt that she in- formed her husband, on the day before the inquisition was taken, that she had applied to the court to have a committee appointed, and that hearing was appointed for an hour on the next day, was not notice, within the requirement. It would be dangerous to bind a party by a notice so informal. There is no reason to sup- pose that these proceedings were instituted by the petitioner in bad faith, but justice, and the possible grave injuries which may flow from irregular proceedings in these cases, admonish courts to guard them with great strictness, and to require an observance of all practicable safeguards against fraud and injustice. We have concluded that the order appealed from may be affirmed, without weakening the principle which we have announced, on these grounds: First, that, on the proceedings instituted before Judge Ingraham by the alleged lunatic, there was a full opportunity afforded him to present and litigate the question of his sanity, and it was litigated and decided adversely to him without his raising any question of jurisdiction ; second, that the appellant in his present motion asked alternative relief, viz., that the proceedings should be vacated, or that the petitioner be permitted to travetse the inquisition, which latter relief, or relief more favorable, has been awarded him; third, that the order below allows the appel- lant to traverse, not the inquisition, but the original petition, thereby putting him in the same position as upon an original hear- ing thereon; and, fourth, that it was discretionary with the court, pending the traverse, to let the inquisition and proceedings stand until the termination of the inquiry. In re Tracy, supra. The other objections taken to the procedure, which resulted in the ap- pointment of a committee, are not, we think, available as a ground of reversal. The orders of the special and general terms should therefore be affirmed. Effect of commitments to, and discharges from, asylums for the in- sane, see 14 L. R. A. (N. S.) 469, and note. Collateral attack upon in- quisition of lunacy, 12 lb. 895, and note. Effect of acquittal on a crimi- nal charge, upon the gound of insanity, on liberty of the prisoner. See In re Watkins, 3 Pet. 193, inserted at ch. 5, sec. 8 (a) ante. For the practice in North Carolina in inquisitions of lunacy, and for the rulings and dicta as to whether or not the acts of one who has been adjudged. insane are void or voidable, if such acts be done while such adjudication remains unvacated, see Bethea v. McLennon, 23 N. C. 523; Sims V. Sims, 121 N. C. 297, 28 S. E. 407; Johnson v. Kincade, 37 N. C. 470; Crump v. Morgan, 38 N. C. 91; Sprinkle v. Wellborn, 140 N. C. 163, 52 S. E. 666; Mordecai's L. L. 219-224. See further as to when and how inquisitions of lunacy are to be conducted. Pell's Revisal, sec. 1890, et seq.; In re Propst, 144 N. €. 566, 57 S. E. 342; In re Anderson, 132 N. C. 243, 43 S. B. 649; Woerner's Am. Law of Guardianship, 384; Mc- intosh Cont. 237. See "Insane Persons," Century Dig. § 21; Decennial and Am. Dig. Key No. Series § 13. Sec. 6.] REMEDIES IN SPECIAL CASES. 757 Sec. 6. Sale op Real Estate, by the Personal Representa- tive, TO Make Assets for the Payment of the Debts op a Decedent. BLOUNT V. PRITCHARD, 88 N. C. 445. 1883. What the Complaint or Petition Should Contain. Amount of Debts. Value of Personalty. [Special proceeding to make real estate assets, filed before the clerk of the superior court. The complaint stated that the debts outstanding against the estate of the decedent amounted to about $900 and that the value of the personalty of the estate did not exceed $500. The defend- ants demurred for that the complaint failed to state: That the person- alty had been exhausted; the application thereof; or that it "had been made assets according to law." Demurrer overruled, and defendants appealed. Affirmed.] Ashe, J. The statute authorizing the sale of land to make as- sets for the payment of debts (Bat. Rev., ch. 45, sec. 61) provides, that when the personal estate of a decedent is insufficient to pay all his debts, including the charges of administration, the executor, administrator, or collector may, at any time after the grant of let- ters, apply to the superior court of the county where the land or some part thereof is situated, by petition, to sell the real property for the payment of the debts of such decedent. Sec. 62. The petition, which must be verified by the oath of the applicant, shall set forth, as far as can be ascertained: (1) The amount of the debts outstanding against the estate; (2) The value of the personal estate and the application thereof; (3) A descrip- tion of the legal and equitable real estate of the decedent, with the estimated value of the respective portions or lots; (4) The names, ages, and residences, if known, of the devisees and heirs at law of the decedent. . . It is the insufiSciency of the personal estate of a decedent to pay his debts which is the essential fact that gives jurisdiction to the court, and imposes upon the representative the duty of applying for leave to sell the real property. In Finger v. Finger, 64 N. C. 183, it is held that "on a petition to sell lands of a deceased per- son, the administrator must satisfy the court, either that the per- sonal estate has been exhausted in the payment of debts, and that others are due, or that it will be clearly insufficient for that pur- pose. ' ' In Shields v. McDowell, 82 N. C. 137, Judge Dillard says, in relation to Bat. Rev. eh. 45, sec. 61 : "In construing this section, in connection with the clause of the section requiring a statement in the petition of the amount of the personalty and its application, we think the meaning of the statute is, that the power and duty to apply for a license exist whenever insuiSciency occurs, and can be shown forth in the petition, whether presently or remotely, after the gra.nt of letters, or before or after a full application of the personal assets." In that case there had been an application, 758 REMEDIES IN SPECIAL CASES. [Cll. 9. in part, of the assets of the testator to his debts, and the judge was no doubt speaking in reference to the facts of the case, when he said license to sell might be granted "before or after a full application of the personal assets. ' ' For we think the proper con- struction of the statute is, that license may be granted even if there has been no application of the assets; but if there has been an application, it should be stated that the court may see that there has not been a misapplication. The statute expressly provides that in case of an insufficiency of assetSj the personal representative may at any time after the grant of letters, apply for the license ; and if he may apply at any time, he may do so just so soon as he ascertains there is an insufficiency, and before he can possibly convert the personal estate into money and make an application of it to the debts. As under the present plan of administration the assets must be applied pro rata to the several classes of debts according to their priorities, we do not well see how any application can be safely made before an ad- ministrator ascertains what amount of [personal] assets he will have to apply. The main and essential fact to be stated in the petition is, that there is an insufficiency of [personal] assets to pay the debts, and, that the court may know this, the statute requires a statement of the amount of the debts and the value of the personal estate; but these statements are not required to be made with exact particu- larity, but only "as far as can be ascertained," for these italicized words used in section sixty-two, according to grammatical con- struction, qualify each of the subdivisions of that section. There is no error in his honor's judgment in overruling the demurrer. Let this be certified to the superior court of Pasquotank, to the end that a procedendo may be issued to the probate court [clerk of the superior court] of the coruity, to proceed upon the petition for the sale of the land as prayed for. Affirmed. The present statute of North Carolina is identical with that quoted in the principal case. See Pell's Revisal, sec. 77 and notes, where the later cases are digested. The amount of the dehts and the value and dispositiion of the personalty must be set out in the complaint. See "Executors and Administrators," Century Dig. § 1370; Decennial and Am. Dig. Key No. Series § 336. PERSON V. MONTGOMERY, 120 N. C. Ill, 113, 26 S. B. 645. 1897. Defenses Open to the Heirs and Devisees. Reference. [Special proceeding to make real estate assets. In the course of the opinion is the following:] FuECHES, J. . . An administrator has a right to have land sold to pay debts and costs of administration, where the per- sonal assets are not sufficient. Code, § 1436. The heirs must be made parties to a proceeding to sell land for assets, and where Sec. 6.] REMEDIES IN SPECIAL CASES. 759 they deny that it is necessary to sell, that there are sufficient per- sonal assets if properly administered, or that the debts upon which it is asked that the land be sold are not due by the estate, the court will not order a sale until these questions are deter- mined ; and the usual course is to refer the matter, as was dcjne in this case. This reference is not for the purpose of settling the es- tate, but for the purpose of informing the court whether it is nec- essary to sell the land for assets, and the probable amount that it will be necessary to raise out of the land. In this proceeding, it being against the heirs and for the purpose of taking and eon- verting their land to the payment of debts due by their ancestor, they are at liberty to show any personal estate that should be first made liable, and a solvent debt due the estate, that might be col- lected, is a part of the personal assets. They are also at liberty to dispute and contest the liability of their ancestor's estate to the debts for which their lands are sought to be sold ; and even to plead the statute of limitations against the debts claimed to be due, unless they have been reduced to judgment; and, if fraud and collusion can be shown between the administrator and the creditor, it may be pleaded w"here there has been judgment. See "Executors and Administrators," Century Dig. §§ 1334-1342, 1418; Decennial and Am. Dig. Key No. Series §§ 322-325, 339. MORRISBTT v. FERBBEB, 120 N. C. 6, 8, 26 S. E. 628. 1897. Claiming the Homestead. [Special proceeding to sell land for assets. Judgment against the plaintiff, and he appealed. The complaint was in the proper form. Some of the defendants were infants who were duly represented by a guardian ad litem. The answer filed on behalf of these infants admitted the allegations of the complaint, and the clerk gave judgment for a sale of the land subject to the widow's dower estate — the dower having been theretofore allotted. After a sale and report thereof to the court, a petition was iiled in the cause on behalf of the infants, asking that $1,000 of the proceeds of the sale be invested for the benefit of the infants until they arrived at full age. The clerk confirmed the sale and ordered the investment of the $1,000 as prayed. The plaintiff administrator ap- pealed to the superior court in term. The judge of the superior court reversed the judgment as to the $1,000, but held that the infants were entitled to a homestead in the land to be allotted by metes and bounds so as to include that part of the land which was already covered by the widow's dower, and gave judgment accordingly. He further adjudged that the administrator refund to the purchaser of the reversion after the widow's dower the amount paid for such interest. The widow was the purchaser of such reversionary interest.] PuRCHES, J. . There is error in both rulings. The in- fant defendants w-ere entitled to their homestead, which should have been laid off on the dower land. Watts v. Leggett, 66 N. C. 197; Graves v. Hines, 108 N. C. 262, 13 S. E. 15; Gregory v. El- lis, 86 -N. C. 579. But when they were made parties, and were properly in court, represented by a guardian, as is found to be 760 REMEDIES IN SPECIAL CASES. [Ch. 9. the case here, admitted the allegations of the complaint, and made no claim to their homestead, and allowed judgment to be taken against them, and an order of sale subject to the dower of the widow, a sale of the property, a confirmation of the sale, and a payment of the purchase money, as must have been the case here, as the order of the court is "that the plaintiff pay back the pur- chase money, " it is too late. They are estopped by this judgment. Dickens v. Long, 109 N. C. 165, 13 S. E. 841. Third parties have become interested, and this judgment cannot be thus collaterally attacked. Dickens v. Long, supra, and cases there cited. It is true that the defendants made their application to have the $1,000 paid into court for their benefit before the sale was eon- firmed. But they did not object to the confirmation. In fact, the order they asked to have made substantially asks a confirmation of the sale, as there could have been no money in the hands of the plaintiff to pay into court without such confirmation. Defendants not being entitled to a homestead, there is no ground to support the order for plaintiff to pay back to the widow the money she paid him for the reversionary interest in the land covered by the dower. She is the owner of this reversion, and must pay for it, if she has not done so. For the errors pointed out, the judgment appealed from is reversed, and the judgment will be the ordinary judgment of confirmation. Error. See "Executors and Administrators," Century Dig. § 377; Decennial and Am. Dig. Key No. Series § 1543. TILLETT V. AYDLETT, 90 N. C. 551, 552. 1884. Clerk's Powers and Duties in Designating What Portion of the Lands Shall Be Sold. [Special proceeding for sale of land for assets. The defendants in- sisted that the clerk had no authority to designate, in the judgment of sale, what particular tract or portion of the land should he sold. The clerk ruled otherwise, and gave judgment directing that certain specified portions of the land he sold. Upon appeal to the court in term the judge reversed the clerk's ruling and remanded the case with instructions to the clerk to make an order granting to the plaintiff license to sell all of the lands described in the complaint "or so much thereof as may be necessary." Prom this judgment the plaintiff appealed. Reversed.] Mberimon, J. . The appellant contends that in making this judgment the judge erred, and we are of that opinion. The statute (The Code, § 1436) allows the administrator, in the contin- gencies therein mentioned, to apply to the superior court [for li- cense] to sell the real property for the payment of the debts of the deceased debtor. It is further provided, in section 1443. that "as soon as all proper parties are made to the proceeding, the clerk of the superior court before whom it is instituted, if the allega- tions in the petition are not denied or controverted, shall have power to hear the same summarily and decree a sale ; ' ' and section Sec. 6.] BEMBDIES IN SPECIAL CASES. 761 1444 provides, "that the court may decree a sale of the whole, or of any specified parcel of the premises, in such manner as to size of lots, place of sale, terms of credit and security for payment of purchase money, as may be most advantageous to the estate," etc. It is manifest that the last mentioned section confers upon the court a large power of discretion, and in terms authorizes it to decree a sale of the real estate of the decedent in whole or in part, and to designate what part shall be sold. It might, and often does, happen that only a part of a deceased debtor's land is required to be sold to pay his debts, and in many cases it may be advantageous to the estate and those interested in it to sell only particular parts of it. Such a discretion must be lodged somewhere, and the legis- lature has chosen to confer it upon the court. This discretion is not an arbitrary one ; it is a sound legal discretion, having in view the best interests of the estate and all persons interested therein. To direct a sale of the whole or any particular part or tract of land to suit the convenience of one or two of the parties interested, to the prejudice of others having a like or similar interest, would not be a sound discretion or a just exercise of the power conferred. The court should endeavor, according to its information, to sub- serve the best interests of the estate, and fairly the interest and convenience of all interested in it. The clerk of the superior court, for the purpose of decreeing a sale. in the case provided in section 1443, represents and is the court, and has authority to ex- ercise the discretionary powers conferred. Indeed the clerk im- plies the court in cases like this, as well as in many other like cases. The Code, § 132. We are not at liberty to decide upon the propriety and expe- diency of the decree made by the clerk of the court in this case, or to say that a sale of the land should not be made as directed by the judge ; but we think we may properly suggest that the decree should direct a sale to be made in such way as to disturb as little as practicable the will of the testator. This is enjoined by the statute. The Code, § 1430. There is error, and the judgment and order of the judge must ie reversed. See "Executors and Administrators," Century Dig. §§ 1365, 1444, 1445; Decennial and Am. Dig. Key No. Series §§ 330, 346, 347. THOMPSON V. COX, 53 N. G. 311. 1860. Parties. OrecCitor^ Rights. Report and Confirmation of Sale. Raising the Bid. Opening the Biddings. Attacking the Sale for Fraud. [Petition filed in the county court to set aside a sale made under an order of that court rendered in a petition to make real estate assets. There was a sale of the decedent's lands under the order of the court, report of sale, and judgment confirming the report and sale. Thereafter certain creditors of the decedent filed this petition against the adminis- trator and the purchaser, charging fraud and collusion between them; that the land brought much below its value; that the administrator and the purchaser had a secret understanding by which the administrator 762 REMEDIES IN SPECIAL CASES. [Ch. 9. was to participate in the purchase; that the administrator had, hy false statements and fraud, induced the court to confirm the sale; and that by reason of these things the petitioners and other creditors of the deced- ent would he losers to a large amount. The prayer was, that the sale and order of confirmation be set aside and a re-sale ordered, etc. The administrator and the purchaser answered the petition and testimony was taken. The county court dismissed the petition, and the petitioners appealed to the superior court, where the judgment of the county court was affirmed. They then appealed to the supreme court. Affirmed.] Pearson, C. J. The statute, eh. 4G, § 47, Rev. Code, requires that ' ' the heirs and devisees or other persons interested in said es- tate," shall be made parties to the petition of an executor or ad- ministrator to sell real estate. We think it obvious that the words, "or other persons interested in said estate," were intended to em- brace the assignees of the heir or devisee, that is, their heirs or devisees or persons taking by purchase or alienation within two years after the qualification of an executor or letters of adminis- tration granted, which conveyances are made void against credit- ors or executors and administrators by section 61, and do not em- brace the creditors of a deceased debtor; for: (1) They are repre- sented by the executor or administrator who made the applica- tion for the license to sell the real estate for their benefit, and the only adversary interest is that of the heir or devisee, or their as- signees; (2) The creditors may not be known, or their debts as- certained; (3) Creditors have no direct interest in the estate, and can only reach it by charging the executor or administrator with the proceeds of the sale as assets. There is no express provision in the statute requiring the sale made by an executor or administrator to be reported to the court and be confirmed. It may be that the 49th section, which omits the word "license" and substitutes that of "decree," and re- quires "that the title shall be made to the purchaser by such per- son, and at such time as the court shall prescribe, ' ' furnishes suf- ficient ground for the inference that the sale ought to be reported to, and confirmed by, the court; yet, in the absence of some ex- press provision, we are not at liberty to carry the construction fur- ther, and infer that the fund, in respect to its collection and mode of application, is to be under the control and direction of the court; for, by section 51, it is provided, "the proceeds of the sale shall be assets in the hands of the executor or administrator for payment of debts, etc., and applied as though the same were the proceeds of personal estate." It follows that after granting a license or decree of sale, and the order confirming the sale and to make title to the purchaser is passed, the court has nothing more to do in the matter, and its jurisdiction is at an end. Having ar- rived at these conclusions in regard to the construction of the statute, the application to the case under consideration shows that the proceeding cannot be sustained. Viewed in the light of a petition to open the biddings, there are two fatal objections : No responsible specific offer is made in re- spect to the amount, and no assurance given that the price will be Sec. 6.] REMEDIES IN SPECIAL CASES. 763 increased. After the term at which a sale is confirmed, a court of equity [even] in the case of a decree of sale or for partition, of an infant 's land and the like, where the fund, in respect to its collec- tion, distribution, and application, is still under its control, will not open the biddings; Ashby v. Cowell, 45 N. C. 158; a fortiori the court cannot do so in a case where, after passing the order of confirmation, etc., its jurisdiction is at an end. Viewed in the light of a petition to reJvear, it cannot be enter- tained, because the petitioners were not and ought not to have been parties to the original proceeding. One who is not a party cannot appeal, or petition to rehear, or file a bill of review. This is settled, according to the practice of the courts, and no precedent to the contrary can be found. Viewed in the light of a hill in equity to convert the purchaser into a trustee, on the allegation of a fraudulent collusion between him and the administrator to suppress competition — buy the land at a sacrifice and divide the spoils — and on the footing of fraud, to hold them liable for the actual value of the land instead of the price at which it was sold, the proceeding cannot be entertained ; because the county court, in which it originated, had no such eq- uity jurisdiction. It has general original jurisdiction in causes of a civil Mature at the common law ; its equity jurisdiction is limited, and depends on specific statutory provisions (Leary v. Fletcher, 23 N. C. 257) — e. g., "petitions for filial portions, legacies, and distributive shares, matters relating to orphans, idiots and luna- tics, and the management of their estates." Revised Code, eh. 31, § 5. Whether by force of the 53rd section of the statute under con- sideration, which subjects to sale, on the application of an execu- tor, or administrator, "all rights and interests in land which may JDC devised or would descend to the heirs, and all such other in- terests in real estate as would be liable, in a court of equity, to be applied in discharge of debts," has the effect of giving jurisdiction to the county court in such cases, is a question not now presented ; but it is certain that these matters are peculiarly fit to be dealt with by a court of full equity powers, and the interests of all parties will be best protected by having the rights declared by a decree in a court of equity, before the land is exposed to sale. This section, however, has no application to the case before us; the powers of a court of limited jurisdiction cannot be enlarged by implication. Order affirmed. That the creditors are not proper parties, and should not be joined with the administrator as plaintiffs, see Striclvland v. Striclcland, 129 N. C. 84, 39 S. E. 735. For who should be and who may be parties plain- tiff or defendant, see Pell's Revisal, sees. 68, 74-76, and notes. As to raising the bid, see Vass v. Arrington, 89 N. C. at p. 13, where it is said: "In this state our courts have adopted the English practice, and will set aside a sale for inadequacy of price, when that fact is shown to the court by affidavit or otherwise; but when the commissioner has reported that the property sold has brought a fair price, and there is no evidence ad- duced to the contrary, the court will confirm the sale, unless before con- 764 REMEDIES IN SPECIAL CASES. [Ch, 9. flrmation an offer is made to raise the bid ten per cent.; in wliicli case our courts will always set aside the sale and open biddings. Blue v. Blue, 79 N. C. 69; Best ex parte, 56 N. C. 482; Pritchard v. Askew, 80 N. C. 86; Wood v. Parker, 63 N. C. 379; Atty. Gen. v. Roanoke Nav. Co., 86 N. C. 408." In Attorney General v. Roanoke Nav. Co., 86 N. C. 408, referred to above, is this: The practice here, established by long usage in our courts of equity, has been to reopen biddings and order a re-sale whenever an advance bid has been offerd of ten per cent, upon the amount bid at the sale, provided it Is made before the confirmation of the sale and in apt time, which is at the term ensuing the sale, but never to re-open biddings after confirmation except in cases of fraud, meaning fraud in its broadest sense. The rule laid down by Mr. Justice Rodman in Blue V. Blue, 79 N. C. 69, is, we think, the correct rule, and is in accordance, so far as our information extends, with the uniform practice which has obtained in our courts in such cases. He says, 'the practice in this state is to set aside a sale before confirmation, upon an offer of an ad- vance of ten per cent, upon the price. That is also the English rule.* S. P. In the matter of Bost and others, 56 N. C. 482; Wood v. Parker, 63 N. C. 379. In Daniel, Ch. Pr. 1465, we find the English rule laid dowu as follows: 'When estates are sold before a master under the decree of a court of equity, the court considers itself to have greater power over the contract than it would have were the contract made between party and party; and as the chief aim of the court is to obtain as great a price for the estate as can possibly be got, it is in the habit, after the estate has been sold, of "opening the biddings," that is, of allowing a person to offer a larger price than the estate was originally sold for, and, upon such offer being made, and a proportionate deposit paid in, of directing a re-sale of the property.' And again, on page 1466 of the same book, it is said, 'that the mere advance of price, if the report of the purchaser being the last bidder is not absolutely confirmed, is sufficient to open the biddings, and that they may be opened more than once.' The purchasers insist there was error in receiving the advance bid of Arrington, who was present at the sale and bid for the property. It is true, that is an objection that has been sometimes entertained on the ground that it tends to prevent a proper competition, but the ob- jection having been taken before Lord Eldon, in the case of Tyndale v. Warre, cited in Daniel, Ch. Pr. 1460, he held, that although the court' looks with jealousy upon the offer of such a person, yet the largeness of the bid offered will be taken as a compensation for a loss that may have arisen from a want of competition at the sale." See "Executors and Administrators," Century Dig. §§ 1400-1403, 1539; Decennial and Am. Dig. Key No. Series §§ 337, 376. VASS V. ARRINGTON, 89 N. C. 10, 14-15. 1883. Status of Bidder Before and After Confirmation. Date at Which the Purchaser's Title Is Fixed. [Action to foreclose a mortgage. Decree of sale. Sale made on May 1st, 1883, reported to June term, 1883. At the time of the sale, the state, county, and city taxes assessed on June 1st, 1883, amounted to $79. The court confirmed the sale and adjudged that these taxes be paid out of the proceeds of sale. Defendant appealed. Reversed as to this point.] Ashe, J. . . Where land is sold under decree of court, the purchaser acquires no independent right. He is regarded a,s Sec. 6.] REMEDIES IN SPECIAL CASES. 765 a mere proposer until confirmation. Attorney Gen. v. Roanoke Nav. Co., 86 N. C. 408. But when confirmation is made, the bar- gain is then complete, and it relates back to the day of sale. Rorer on Jud. Sales, § 122. The case of McArlan v. McLauchlin, 88 N. C. 391, is an adjudication on this point, which, it seems to us, is de- cisive of the question. There, a creditor of one McLeod, who died in May, 1870, brought action against his administrator and re- covered judgment for a considerable amount, and then sought to have the land of McLeod subjected to the payment of his demand. The land had been sold under a, decree of sale for partition on the 3rd of November, 1871, and the deeds to the purchasers were ex- ecuted after two years from the granting of letters of administra- tion, and the question presented to this court was whether the title of the purchasers accrued from the date of the deeds, or from the sale. Mr. Justice Ruifin, speaking for the court, said: "The court thinks and so declares, that the defendants (who were the pur- chasers) took the lands from the commissioner in the same plight and condition they were in at the moment of the sale, and subject, as they were, to the payment of the decedent 's debts. ' ' Applying the principle there announced to our case: By the confirmation of the report of the commissioner, the purchaser ac- quired title to the house and lot by relation to the, day of sale, and takes them in the same plight and condition they were in at the moment of the sale on the 1st day of May, 1883, subject to the taxes due in that year. The judgment must therefore be reformed so as to elimdnate therefrom so much as relates to the charge of tbe taxes of 1883 upon the proceeds of the sale, and in all other respects it is affirmed. While the principal case is one of foreclosure of a mortgage, the ruling applies to all judicial sales. See "Judicial Sales," Century Dig. § 90; Decennial and Am. Dig. Key No. Series § 50. MOORE V. GIDNEY, 75 N. C. 34. 1876. Effect of Plaintiff's Counsel Advising Defendants. [Special proceeding to make real estate assets. A guardian ad litem was appointed for certain infant defendants, which appointment was made the day before the proceeding was commenced. This guardian filed an answer admitting the allegations of the complaint. This answer was written by the plaintiff's counsel, at his own suggestion and without any charge for his services. In doing this no impropriety was intended. Juidgment for a sale of the land. Sale made, reported, and confirmed. The judgment confirming the sale was rendered on April 16th, 1875. Some time thereafter the guardian ad litem moved in the cause, before the clerk of the superior court, to set aside the judgment for the sale a,n,d the confirmation thereof, on the ground that such judgments were void. The clerk refused to vacate the judgments and the guardian ad litem appealed to the judge of the superior court, who ruled that the whole proceeding was void and gave judgment accordingly. Appeal by the administrator, Gidney. Aflirmed. ,; 766 REMEDIES IN SPECIAL CASES. [Ch. 9. The following additional facts were found by the judge of the superior court: The summons in the special proceeding was not served on the infants until October 14th, 1874, though it was served on their guardian ad litem on September 10th, 1874. The order of sale was entered Octo- ber 5th, 1874. The land sold for a fair price. (The case on appeal states that the summons was served on the infants on September 14th, 1874, but as it is stated, in both the case on appeal and in the opinion, that the service was after the judgment for sale, it is evident that Sep- tember 14th is a mistake for October 14th in giving the date of the service on the infants. ) ] Bynum, J. . In this case the guardian ad litem was ap- pointed before the infants were brought into court by summons. No summons or copy of the complaint was served on them until after the decree of sale. In law, they were undefended. Their rights and property were attempted to be adjudicated upon and taken from them under the sanction of law, but in violation of its letter and spirit. They had no day in court, and, as to them, the proceedings were irregular, and subject to be set aside. It may be, and it is alleged, that inasmuch as the estate is in- solvent, and the proceeds of the sale of lands must all be applied in payment of the debts of the intestate, the infants have no sub- stantial interest to be affected by the decree and are, therefore, not injured. But as they were not in court, and could not be heard, these alleged facts do not appear to us judicially, and we cannot assume them to be true. "What they may be able to show in de- fense of this proceeding when they are properly brought in court, and are represented by a guardian, duly constituted, who will dis- charge his dutj" to them, we cannot anticipate. Sufficient for the day is the evil thereof. This application is treated as a motion in the original proceed- ing for the sale of the land (which action is still pending), to set aside for irregularity the decree of sale and all subsequent pro- ceedings. We have disposed of the case as far as the infants are concerned. "We next proceed to examine it so far as it affects the widow herself. She filed no answer in her own right, but an- swered in right of the infants only. She alleges that she was not, at the time of her answer, apprised of the facts which constitute her equitable right to the largest tract of land, to-wit : the "Wilson tract. She further alleges that her answer to the petition for the sale of the land was filed for her by the attorney of the plaintiff ; and that she was at the time so troubled and distressed in mind by the recent death of her husband, as to be disqualified for busi- ness, and thus was induced to assent to the answer, without knowl- edge of her rights. These allegations are not directly denied. But it is denied tliat the counsel of the plaintiff acted as the defend- ant 's counsel, farther than in drawing up her answer ; and we are satisfied that no improper influence was intended. Yet the law does not tolerate that the same counsel may appear on both sides of an adversary proceeding, even colorably; and in general will not permit a judgment or decree so affected to stand if made the subject of exception in due time by the parties injured thereby. Sec. 7.] REMEDIES IN SPECIAL CASES. 767 The presumption, in such eases, is that the party was unduly in- fluenced by that relation, and the opposite party cannot take the henefit of it. It does not appear affirmatively in this case that Mrs. Moore, the defendant, was not influenced to her prejudice and thrown off her guard thereby. The purity and fairness of all judicial proceedings should so appear when drawn in question. See also Ellis v. Massenburg, 126 N. C. 129, 35 S. E. 240, as to the necessity for avoiding even the appearance of evil in the matter of rep- resenting two sides of a case, especially where infants are concerned. As to the necessity of making proper parties to proceedings to make real estate assets, and how, when, and by whom such sales may be at- tacked after confirmation, see Perry v. Adams, 98 N. C. 167, 3 S. E. 729; Rackley v., Roberts, 147 N. C. 201, 60 S. E. 975; Lanier v. Heilig, 149 N. C. 384, 63 S. E. 69. This last case is far more conservative than many of its predecessors in the matter of protecting the rights of pur- chasers. It holds that the attack upon such sales, unless it be for fraud, must be by motion in the cause even though a final judgment has been rendered; even when a judgment for sale of land is set aside for irregu- larities, the rights of innocent parties will be protected; it is only where the judgment is void because of want of jurisdiction of the per- sons or subject-matter, that rights acquired will be disturbed; and even in these cases, if the purchase money has been applied in exoneration of the land, the purchaser will be subrogated to the rights of the cred- itors. "This is common learning and manifest equity." See Speer v. James, 94 N. C. 417, for several valuable points on these proceedings. For a general discussion of the history and practice in these proceed- ings and for many points decided with reference thereto, see Mordecai's L. L. 1161 et seq., 1176, 908-919, 530; Woerner's American Law of Ad- ministration, sees. 463-488; Croswell's Bxtrs. & Admrs. pp. 280-301; 18 Cyc. pp. 674-846. See "Attorney and Client," Century Dig. § 229; Decennial and Am. Dig. Key No. Series § 113. Sec. 7. Creditoes' Bills, hancock v. wooten, 107 n. c. 9, 19-24, 12 s. e. 199. 1890. True Character of a General Creditors' Bill. Judgment Creditors' Bill. Rules of Equity Practice. Present Rules of Practice under the Code. Necessity for a Judgment at Law. Priorities. [Wooten and his wife made a deed of trust for the benefit of creditors, by which a certain creditor was preferred for so large an amount as practically to absorb the trust estate. Hancock Bros, brought an action against Wooten to recover a debt, and several other creditors brought similar actions. Other creditors jointly sued Wooten and the trustee in the deed of trust for the recovery of debts and for the purpose of hav- ing the deed of trust declared void in so far as it affected their interests. In this action an attachment was issued and levied on the personalty embraced in the trust deed. About the same time sundry other actions were brought by other creditors, in which actions attachments were is- sued and levied on the personalty. Then other creditors obtained judg- ments in magistrates' courts and caused some of the personalty to be sold under execution. The proceeds of such sales were held by the sheriif. By an order of the superior court in term, all of these actions 768 REMEDIES IN SPECIAL CASES. [Ch. 9. ■were consolidated with the case of Hancock Bros. v. Wooten et al. The order was as follows: "It appearing that the above action, pending in this court, is a creditors' bill, and that there are creditors of the de- fendant, W. J. Wooten, other than the plaintiffs, it is now ordered, on motion of defendant's counsel, that notice be issued by the clerk of this court to the following creditors of W. J. Wooten (naming the present parties plaintiff), to appear at the next term . . . and make them- selves parties to this action. It is further ordered that publication of this notice be made for all creditors of said W. J. Wooten for six weeks successively in (a certain paper), to appear at next term of this court and make themselves parties plaintiff." Thereafter Hancock Bros, and their co-plaintiffs filed a complaint in "behalf of themselves and all other creditors of W. J. Wooten who may become parties." The defendants answered denying all the material allegations of the complaint. An issue as to whether or not the deed of trust was fraudulent as to creditors, was submitted to a jury, and the verdict was in the affirmative. Thereupon the trustee was ordered to render an account and to pay over the assets in his hands to a re- ceiver; and the sheriff was ordered to do the like with the proceeds of the trust property sold by him. The deed of trust was adjudged to be void, and a referee was appointed to report "the debts to whicli said money should be applied, the amount of said debts, and the pro rata share of each debt to be paid out of said fund, and the balance due them, etc." Acting under these orders, the referee proceeded to perform the duties imposed upon him, and the receiver paid out some money. There- after Simeon Wooten filed, in the cause, an application for permission to prove certain claims. This was opposed and the judge refused to permit the claims to be proven because, inter alia, in the opinion of the court, the applicant was too late, it being shown that he was a party defendant to this action and had once offered to file his claims with the referee but, upon objection being made thereto, had withdrawn them. From this ruling Simeon Wooten appealed. There were other objec- tions made by other defendants to the disposition of the whole case, which being overruled, they also appealed. Affirmed. Simeon Wooten being a defendant in the action allied himself with those who defended the fraudulent assignment.] Shepherd, J. . . . The second exception is to the ruling of the court declining (after the deed was found to be fraudulent) to allow Simeon Wooten to prove his debt, and prorate with the plaintiff creditors in the proceeds of the property conveyed therein. It does not appear that the said Wooten participated in the fraudulent intent of the trustor, but he claimed under the deed, and united with the trustee in defending it against the just claims of the plaintiffs. He has never abandoned his adverse posi- tion, and is, even now, insisting upon a new trial upon the issue involving the validity of the said trust. Occupying this antago- nistic position, he seeks to share in the fruits of the plaintiff's re- covery, and the question is, shall he be permitted to do so? In order to determine this point, it is necessary to consider the true character of this action. It is claimed that it is in the nature of a creditors ' bill, and that in such actions all creditors may, at any time before final decree, be allowed to come in and prove their claims. Undoubtedly, such is an incident of what is ordinarily called a "general creditors' bill." Such bills are usually insti- ,tutedi fpr the purpose of winding up the insolvent estates of de- ceased persons or the aifairs of a corporation. These may be illus- Sec. 7.] REMEDIES IN SPECIAL CASES. 769 trated by the cases of Pegram v. Armstrong, 82 N. C. 326; "Words- worth V. Davis, 75 N. C. 159; Long v. Bank, 81 N. C. 41; Glenn V. Bank, 80 N. C. 97 ; Dobson v. Simonton, 93 N. C. 268. In such cases there are many parties standing in the same situation as to their rights or claims upon a particular estate or fund, and the shares of a part cannot be determined until the rights of all the others are settled or ascertained. Of this nature, also, are bills brought to enforce trusts or assignments for creditors, and other instances where there is a community of interest, or where the law devolves upon the court the duty of taking a fund into its custody, and distributing it according to the respective interests of the parties. In such cases, no priority can be acquired by one party suing or making himself a party before the others; and, perhaps, one who has vainly endeavored to defeat the purposes of the ac- tion, may, upon proper terms, be allowed his share in the fund. Such creditors' bills, however, are totally different from those in- stituted by an unsecured creditor (or several creditors if they choose to unite) against a living debtor. Here the field is open to all, and he who first secures a priority shall reap the reward of his diligence. Such bills are often said to be in the nature of an equitable fi. fa. or equitable levy (Bisp. Eq. § 528), and under them the vigilant creditor may acquire a priority as he does when he pursues the analogous remedy of execution at law. Bills of this kind are called "judgment creditors' bills" (see Harv. Law Rev. Oct., 1890), and are so familiar in our practice that it is hardly necessary to illustrate them by a reference to actual cases. They were entertained in equity for the purpose of subjecting equitable and other interests which could not be reached and sold under execution, and also for the purpose of removing obstruc- tions to legal remedies, as by setting aside fraudulent conveyances and the like. Under the former practice, in either of the last- mentioned cases, it was necessary before a resort could be had to a court of equity that the creditor should first obtain judgment and show that the legal remedy by execution was ineffectual; but this, under the decision of this court in Bank v. Harris, 84 N. C. 206, is now unnecessary, and both causes of action may be included in one suit. This decision by no means ignores the distinct char- acter of a judgment creditors' bill. On the contrary, it expressly recognizes it as it formerly existed, dispensing only with the ne- cessity of obtaining a judgment in an independent action. The result of the decision is to render the proceeding still more effica- cious, as we think that, by its institution, it creates a preference by way of an equitable lien whether the interest sought to be sub- jected be legal or equitable. This view is supported by Wait in his Fraudulent Conveyances, § 85, who, in commenting upon Bank v. Harris, says that, upon the principle of the case, "it would seem to follow that the usual incidents of a [judgment] creditor's suit would attach to the proceeding." It is believed that any other rule would be attended with inextricable confusion, and conflict as to priorities among various creditors pursuing their Remedies — 49. 770 EEMEDIES IN SPECIAL CASES. [Gil. 9. remedies in other actions and jurisdictions. Even if this were not so as to legal assets, yet, if we assimilate in its effect the judgment, when actually obtained, to an execution at law (and as, we think, must surely follow from the principle of Bank v. Harris, supra, and especially in view of the system of judgment liens adopted by the Code), the plaintiffs in this action would still have priority, as they have all obtained judgments, and Simeon Wooten has none. He and the plaintiffs have been fighting at arms-length, each en- deavoring to establish a priority over the other. The plaintiffs have been victorious, and the deed having been declared fraudu- lent and void, as to them, their preference must be recognized, and the claim of the losing party postponed. This, as we have said, would, perhaps, have been otherwise if there had been such a eonununity of interest in the property as to make it the subject of a general creditors ' bill, but no such result as contended for can follow where there is no such common interest, and where the property is open and subject to the action of the most vigilant creditor. Lex vigilantibus favet. In coming to this conclusion we are but applying in one action the same principles which were formerly administered in the divided jurisdictions of law and equity. The true spirit of equity in cases of this character is, we think, fully reflected by the remarks of Chancellor Walworth in Edmeston v. Lyde, 1 Paige, 637. He says: "On further ex- amination, it may seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful ter- mination should, in the end, be obliged to divide the avails thereof with those who have slept upon their rights, or have intentionally kept back that they might profit by his exertion." To the same effect is the language of Chancellor Kent in McDermutt v. Strong, 4 Johns. Ch. 691. It is urged that the order made at spring term, 1887 (consolidating the various actions and requir- ing notice to be published for all creditors to come in and make themselves parties) , had the effect of converting this into a general creditors' bill. If we are correct in the view we have taken, such an order could not have been made over the objection of the plaintiffs if its effect was to deprive them of the priority they had attained by the commencement of the action, nor could the con- solidation of other pending suits produce such a result. The or- der, however, was not objected to, and its effect, as to questions of priority among the plaintiffs, is not before us, as there seems to be no conflict between them. Conceding, however, that the order placed all who availed themselves of its provisions upon an equal footing, it amounted to no more than if they had united in the first instance, for the property involved was not, as we have seen, the subject of a general creditors' bill, and the action in its essen- tial features still retained its original characteristics. The order certainly cannot be extended so as to embrace those who, instead of accepting its terms, allied themselves with the defenders of the fraudulent assignment in their efforts to defeat the sole purpose of the action. Our attention has been called to the case of Means Sec. 7.] REMEDIES IN SPECIAL CASES. 771 V. Dowd, 128 U. S. 273, 9 Sup. Ct. Rep. 65. In that case the cred- itors secured by the fraudulent assignment were permitted to file their claims, because they were actual creditors and the estate of the bankrupt was in the custody of the law, and in this respect, as in many others, a proceeding in bankruptcy is in the nature of a general creditors' bill. The entire estate had to be settled among all of the creditors, and there seems to be no positive rule of law or equity which makes the misconduct of a creditor a cause of for- feiture of his debt. The decision, therefore, is not applicable to an action like ours. For the reasons given, we are of the opinion that his honor committed no error in declining to allow Simeon Wooten to file his claim and share, equally, with the plaintiffs in the proceeds of the property included in the fraudulent assign- ment. . . . Affirmed. As to priorities, see Butler v. Jaffray, 12 Ind. 504; Smith v. Summer- field, 108 N. C. 284, 12 S. E. 997; Fislier v. Bank, 132 N. C. 769, 44 S. E. 601. Whatever may be the sum demanded, the superior court has juris- diction of a creditors' hill based thereon. Therefore, a creditor whose claim is less than $200 may file a creditors' bill in the superior court, and this is true although his claim is not reduced to judgment. Bank y. Harris, 84 N. C. 206; Mebane v. Layton, 86 N. C. at p. 574. For an exhaustive review of the authorities upon conditions precedent to equi- table remedies of creditors, see 23 L. R. A. (N. S.) 1-123. See "Creditors' Suits," Century Dig. § 210; Decennial and Am. Dig. Key No. Series § 53. NATIONAL TUBE "WORKS CO. v. BALLOU, 146 U. S. 517, 522, 13 Sup, Ct. 165. 1892. Necessity for a Judgment at Law. U. 8. Courts. [Creditors' bill filed in the United States circuit court, in equity. There was no averment in the bill that the plaintiff had recovered any judgment in the state in which the suit was brought — either in a state or federal court — ^upon the debt which was made the basis of the suit. Defendant demurred. Demurrer sustained, and decree against the plain- tiff dismissing the bill. Plaintiff appealed. Affirmed.] Mr. Justice Blatchpord. . . In Claflin v. McDermott, 20 Blatchf. 522, 12 Fed. 375, it was held that a creditor's bill, founded on a judgment recovered against a debtor in a state court in California, would not lie in a circuit court of the United States in New York, to set aside a fraudulent transfer of personal prop- erty made by the debtor in California, by means of collusive judg- ments and sales under executions issued thereon, no judgment having been obtained or execution issued in such circuit court or in any state court of New Tork. The case of Tarbell v. Griggs, 3 Paige, 207, was cited as authority, where the court of chancery of the state of New Tork refused jurisdiction of a creditor's bill filed to obtain satisfaction of a judgment rendered in the circuit court of the United States for the southern district of New York, 772 REMEDIES IN SPECIAL CASES. [Ch. 9. and upon which an execution had been returned unsatisfied, the judgment being treated as a foreign judgment, and as standing on the same footing with the judgments of a court of another state. The principle invoked was that the plaintiff's remedy at law had not been exhausted by the issuing and return of an execution on a foreign judgment, and McElmoyle v. Cohen, 13 Pet. 312, was re- ferred to as authority. . . . The bill in the present case is defective in that respect. It al- leges only the recovery of a judgment against the corporation in Connecticut, and the issuing and return there of an execution un- satisfied. It does not allege any judgment in New York, or any ef- fort to obtain one, nor does it aver that it is impossible to obtain one. It alleges merely that the corporation has no fund or assets wherewith to pay the claim of the plaintiff. Where it is sought by equitable process to reach equitable in- terests of a debtor, the bill, unless otherwise provided by statute, must set forth a judgment in the jurisdiction where the suit in equity is brought, the issuing of an execution thereon, and its re- turn unsatisfied, or must make allegations showing that it is im- possible to obtain such a judgment in any court within such juris- diction. Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. Rep. 397; Webster v. Clark, 25 Me. 313 ; Parish v. Lewis, Preem. Ch. 299 ; Brinkerhoff v. Brown, 4 Johns. Ch. 671 ; Dunlevy v. Tallmadge, 32 N. Y. 457 ; Terry v. Anderson, 95 U. S. 628 ; Smith v. Railroad Co., 99 IT. S. 398, 401 ; Hawkins v. Glenn, 131 U. S. 319, 334, 9 Sup. Ct. Rep. 739; McLure v. Benceni, 2 Ired. Eq. 513, 519; Farned v. Harris, 11 Smedes & M. 366, 371, 372; Patterson v. Lynde, 112 111. 196. Decree affirmed. If the creditor has a trust in his favor, or a lien for the security of his claim, he may go into equity before exhausting his remedies at law. Case V. Beauregard, 101 U. S. 688. The ruling of the principal case is not affected by the practice of the courts of the state in which the fed- eral court is held, for the equity jurisdiction and practice of the federal courts must remain distinct from the legal jurisdiction and practice. Scott V. Neely, 140 U. S. 106, 11 Sup. Ct. 712; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75; Hollins v. Brierfleld, 150 U. S. 371, 14 Sup. Ct. 127. See "Creditors' Suit," Century Dig. § 56; Decennial and Am. Key No. Series § 11. RICHMOND V. IRONS, 121 U. S. 27, 51-54, 66, 7 Sup. Ct. 788. 1886. Amendment Converting a Bill Bj/ One Creditor into a Creditors' Bill. Suspension of the Staiute of Limitations. Contest of the Claim of One Creditor t)y Another Creditor. What Creditors Can Participate in the Fund. [Bill filed hy the plaintiff, who was a judgment creditor of the de- fendant, to subject the assets of a suspended bank to the satisfaction of the plaintiff's judgment. At various times subsequent to (he filing of the bill, other judgment creditors of the bank were, upon their ap- plication, joined as co-complainants. On the final hearing, the bill was amended, by permission of the court, so as to allege that it was filed on behalf of the complainant and all other creditors of the defunct bank. Sec. 7.] REMEDIES IN SPECIAL CASES. 773 To this amended bill various defendants — ^who were defendants because of their being stockholders in the bank — filed separate answers setting up the statute of limitations. Plea overruled, and decree against de- fendants. The decree included among the creditors directed to be paid out of the assets, persons who had not been made parties and had not proved their claims before the master. Defendants appealed. Reversed. Only so much of the opinion as bears upon certain points of practice in Creditors' Bills, is here inserted.] Matthews, J. . . . Mr. Daniel (Ch. Pr. 4th ed. e. 5, § 1, p. 245) says : "The court will generally at the hearing allow a bill, which has been originally filed by one individual of a numerous class in his own right, to be amended so as to make such individual sue on behalf of himself and the rest of the class." Our conclu- sion on this point is that the court below committed no error in permitting the amendments complained of to be made. The assignment of error next to be considered arises upon the defense made on behalf of the defendants below, of the statute of limitations. The limitation relied upon is that prescribed by an act of Illinois, which provides that "actions on unwritten con- tracts, expressed or implied, or on awards of arbitration, or to re- cover damages for an injury to property, real or personal, or to recover the possession of personal property, or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued." Rev. St. 111. 1881, 675. It is not necessary to decide in this case whether the statute of Illinois relied upon is applicable, because, in the view which we have already taken of the nature of the amended bill filed in Oc- tober, 1876, the statute, if applicable, ceased to run against the creditors of the bank entitled to the benefit of the decree, at that date. That amended bill is to be considered, from the date of its filing, as a bill on behalf of all the creditors of the bank who should come in under it and prove their claims. When any creditor ap- peared during the progress of the cause to set up and establish his claim, it was necessary for him to prove that at the time of filing the bill he was a creditor of the bank. Any defense which ex- isted at that time to his claim, either to diminish or defeat it, might be interposed either before the master or on the hearing to the court. The creditor, having established his claim, became en- titled to the benefit of the proceeding as virtually a party com- plainant from the beginning, and the time that had elapsed from the filing of the bill to the proof of his claim would not be counted as a part of the time relied on to bar the creditor's right to sue the stockholders. In other words, if he proves himself to be a creditor with a valid claim against the bank, he becomes a complainant by relation to the time of the filing of the bill. This being so, it is not disputed that in October, 1876. the bar of the statute had not taken effect, .even on the supposition that the statute applied. In the case of In re General Rolling-stock Co., Joint-stock Dis- count Co.'s Claim, L. R. 7 Ch. 646. Mellish. L. J., stated that in a case where the assets of a debtor are to be divided among creditors. 774 REMEDIES IN SPECIAL CASES. [Ck. 9. whether in bankruptcy or in insolvency, or under a trust for cred- itors, or under a decree of the court of chancery in an administra- tion suit, "the rule is that everybody who had a subsisting claim at the time of the adjudication, the insolvencj', the creation of the trust for creditors, or the administration decree, as the case may be, is entitled to participate in the assets, and that the statute of limitations does not run against his claim; but, as long as assets remain unadministered, he is at liberty to come in and prove his claim, not disturbing any former dividend." Mr. Daniel (1 Ch. Pr. 4th ed. c. 15. par. 2, p. 643) states that "a decree for the payment of debts under a creditor's bill for the administration of assets is also considered as a trust for the benefit of creditoi^, and will in like manner prevent the statute from barring the demand of any creditor coming in under the decree. The creditor 's demand, however, must not have been barred at the time when the suit was instituted; for, if the creditor's demand would have been barred by the statute before the commencement of the suit, the statute may be set up. It is to be remarked, upon this point, that it has been held that it was the decree only which created the trust, and that the mere circumstance of the bill hav- ing been filed, although it might have been pending six years, would not take the ease out of the statute, but, according to the later decisions, it seems that the filing of the bill will operate by it- self to save the bar of the statute, though the plaintiff by delay in prosecuting the suit may disentitle himself to relief." He also says (ch. 29, par. 1, p. 1210) : "It may be observed here that where a person, not a party to the suit, carries in a claim before the mas- ter under the decree, the party representing the estate out of which the claim is made has the right to the benefit of any defense which he could have made if a bill had been filed by the claimant in equity or an action had been brought at law to establish such claim. Therefore, as we have seen, an executor may, in the mas- ter's office, set up the statute of limitations as a bar to a claim by a creditor under the decree, provided such claim was within the operation of the statute before the decree was pronounced. ' ' The authorities abundantly sustain the proposition, also, that a creditor who comes in under and takes the benefit of a decree is en- titled to contest the validity of the claim of any other creditor, ex- cept that of the plaintiff whose claim is the foundation of the de- cree. 2 Daniel, Ch. Pr. c. 29, § 1, p. 1210, note 4, and cases cited. In Sterndale v. Hankinson, 1 Sim. 393, decided in 1827, it was stated by Vice Chancellor Leach that ' ' every creditor has to a cer- tain extent an inchoate interest in a suit instituted by one on be- half of himself and the rest, and it would be attended with mis- chievous consequences to estates of deceased debtors if the court were to lay down a rule by which every creditor would be obliged either to file his bill or bring his action." . . . It is also objected to the decree that it included, among the claims directed to be paid out of the assessment upon the share- holders, an amount, alleged to be about $5,000, in behalf of per- Sec. 7.] REMEDIES IN SPECIAL CASES. 775 sons assumed to be creditors, but who did not appear in the cause or before the master to file and prove their claims. This was er- roneous. No person is entitled to recover as a creditor who does not come forward to present his claim. The only proof in refer- ence to such claims in the present case consisted in affidavits made by Henry B. Mason, one of the attorneys of the receiver, that he had "made a personal investigation of all the claims against the Manufacturers' National Bank, and, from the evidence in- troduced in the cause, and from outside knowledge confirmatory thereof, states that the Manufacturers' National Bank of Chicago is justly indebted to the several persons mentioned in the schedule hereunto annexed, and made part of this affidavit, in the principal sums set opposite their several names, with interest thereon from March 12, 1875, at the rate of six per cent, per annum in each case," etc. No one appeared as claimant, and no authority is shown to any one to act for him or in his own name. These claims should have been disallowed. See 5 L. R. A. (N. S.) 89, and note (removal of creditors' suits to United States courts) ; 2 lb. 988, and note (effect of statute of limitations on right to file creditors' bill). See "Creditors' Suit," Century Dig. §§ 210-212; Decennial and Am. Dig. Key No. Series §§ 52-54; "Limita- tion of Actions," Century Dig. § 541; Decennial and Am. Dig. Key No. Series § 124. GLENN V. FARMERS' BANK, 80 N. C. 97. 1879. Precedent f(»- Advertising for Creditors. Letting in Belated Creditors. [Action, in the nature of a creditors' bill, seeking to subject the as- sets of a defunct bank to the payment of its debts. "In the progress of the cause, and in order to ascertain the names of the creditors and the amount of the indebtedness of the bank, the court at spring term, 1876, appointed two commissioners to take proof of the debts, with authority to limit the time within which such proof rould be made. The commissionei-s accordingly advertised in the Greensboro Patriot for more than six weeks for the creditors of the bank to come in and prove their claims at a certain place in Greensboro on or before the 6th of August, 1876, or they would be debarred from par- ticipating in the distribution of the fund. The report of the commis- sioners was made to spring term, 1877, and confirmed; and it was de- clared and adjudged by the court that all such creditors as had made the required proof should share in the assets of the bank, and . those failing to do so be excluded therefrom." On May 24th, 1876, Calvin J. Cowles, through his counsel, deposited some bills of the bank with the clerk and caused an entry to be mad© on the docket that he was made a party to the action. At December term, 1877, Cowles filed a formal petition in the cause, praying to be made a party and to be allowed to prove his claim, and stating that he had failed to see the advertisement for creditors. He made a similar application at December term, 1878, to prove a larger claim. Both ap- plications were refused — the last upon the ground that Cowles failed to prove his claims before the expiration of the time fixed by the pub- lished notice, and "that the matter had been already adjudicated." Cowles appealed. Reversed. 776 REMEDIES IN SPECIAL CASES. [Ch. 9. At the time of the adverse ruling upon Cowles's applications, there had been »o distribution of the fund, nor was such fund in a condition to be distributed.] Smith, C. J. The correctness of the ruling of the court by which the appellant was excluded from sharing in the assets is the only point presented for our consideration upon the appeal. Had the appellant a right upon his statement of the facts and accord- ing to the practice governing in such case, to be admitted among the suing creditors and afforded an opportunity to show that he had and held valid claims against the bank? If the appellant had no information of the advertisement limit- ing the time for proofs and is not chargeable with negligence in bringing forward his claims, his application should have been granted, and it was the duty of the judge to ascertain and deter- mine these precedent facts before giving a peremptory refusal. This inquiry he does not seem to have made, and puts his decision on the simple ground of the appellant's omission to make proof within the restricted time, and that (referring as we suppose to the first petition) the matter was already adjudicated. It was objected in the argument here that the bills held by the appellant are barred by the statute of limitations, and he is not, therefore, entitled to be admitted among the creditors. The objec- tion is not tenable for two sufficient reasons : 1. It is not apparent upon the face of the complaint, and if it was, it must be taken bv answer. Green v. N. C. R. R. Co., 73 N. C. 524. 2. The appellant only asks an opportunity to prove his debt, and if allowed, this or other sufficient legal defense may be set up, when the proof is offered by the other creditors or any one of them. Wordsworth v. Davis, 75 N. C. 159. The rules prevailing in the courts of chancery applicable to cases like the present one are well established and understood. In Gillespie v. Alexander, 3 E. Ch. R. 326, Lord Eldon thus states the practice : ' ' Although the language of the decree, when an account of debts is directed, is that those who do not come in shall be ex- cluded from the benefit of that decree, yet the course is to permit a creditor, he paying the costs of the proceedings, to prove his debt as long as there happens to be a residuary fund in court or in the hands of an executor, and to pay him out of that residue. If a creditor does not come in till after the executor has paid out the residue, he is not without remedy though he is barred the ben- efit of that decree." So in Lashley v. Hogg, 11 Ves. Ch. R. 601, the same eminent judge declared that "though the time" (for proving the debt), "had elapsed, yet the court will let in creditors at any time while the fund is in court." An application on be- half of a creditor for permission to prove his debt after the money had been apportioned among the creditors, and transferred to an officer to be paid to them, was allowed by Vice Chancellor Plumer, who remarked: "The creditor must pay the costs of this applica- tion, and the expense incident to the same in recasting the appor- tionment of the property amongst the creditors." Angel v. Had- Sec. S.] REMEDIES IN SPECIAL CASES. 777 den, 1 and 2 Mad. Ch. R. 285. The sanae principle Is laid down in Story, Eq. PL § 106, and in Adams' Eq. 262, and is recognized and acted on in Williams v. Gibbs, 17 How. 239, and other cases cited in the brief of the appellant's counsel. We think, therefore, the judge erred in summarily rejecting the application without inquiring into the facts, and if the appel- lant, in the language used by the court in the last mentioned case, "was not guilty of wilful laches or unreasonable neglect," he ought not to be concluded by the decree from the assertion of his right, as a creditor, to share in the common fund. Reversed. See Daniel's Chan. Prac. pp. 1203 et seq.; 2 Wait's Act. & Def. 411; 6 Pom. Eq. Jur. sees. 871 et seq.; and 12 Cyc. 5-65, for the general sub- ject of Creditors' Bills. See "Creditors' Suits," Century Dig. §§ 211, 212; Decennial and Am. Dig. Key No. Series § 54. Sec. 8. Remedy op Creditors under 13 Elizabeth. SOUTHERLAND v. HARPER, 83 N. C. 200. 1880. The Several Remedies of Creditors at Law and in Equity. Jurisdiction to Restrain Execution Sale ty Creditor. [Action to restrain the threatened sale of plaintiff's land under an execution. Injunction refused. Appeal by plaintiff. Affirmed. The plaintiff's mother once owned the land and conveyed it to the plaintiff. The grantor was indebted to Harper at the time of such con- veyance. Harper obtained judgment against the mother and was about to sell the land which had been conveyed by her to the daughter, under execution. Harper took this step because he claimed that the convey- ance to the plaintiff was fraudulent and void as to him under 13 Eliza- beth.] DiLLARD, J. From the view taken of the ease by this court, it w&s not necessary that his honor nor that we should find from the affidavits any facts other than those hereinbefore recited, as we are of opinion that the plaintiffs, on their own showing, were not entitled to a continuance of the injunction. It is a fact shown by the plaintiffs and admitted by the defend- ant, that the tract of land mentioned in the pleadings was con- veyed by Elizabeth Mobley before the recovery of judgment by defendant, and this being so, the deed was good between the par- ties and had the operation to pass the legal title to the feme plain- tiff, as against the grantor and all volunteers by, through or un- der her, and also as against the then existing creditors of the grantor, unless they had ground to treat the same as void under the ISth of Elizabeth copied in our laws, or to put it out of their way by decree of a court as in equity. The plaintiffs say the deed was made to the female plaintiff bona fide and in consideration of a true debt from the grantor to the grantee equal to the value of the land, and the defendant denies this and alleges it was exe- cuted mala fide in respect to creditors and upon voluntary con- 778 REMEDIES IN SPECIAL CASES. [C'/l. 9. sideration. and the validity or invalidity of the conveyance as against creditors depended on how these facts were. If the grant were bona fide and on the consideration contended for by the plaintiffs, the title was entirely good against any sale by defendant under his execution against the grantor ; but if ex- ecuted with intent to hinder, delay and defraud creditors, or upon voluntary consideration, as contended for by defendant, then in either case it was void as against an existing creditor, provided in the case of the voluntary consideration since the act of 1840, the donor at the time of the gift retained property sufficient and available to pay existing creditors and had in that case no intent to defraud, to be submitted as an open question of fact to the jury. Black v. Sanders, 46 N. C. 67; Houston v. Bogle, 32 N. C. 496. The creditor, as before remarked, when courts of law and courts of equity were separate, had his election: (1) To reduce his debt to judgment and by execution take, hold, and sell property given away by the debtor, and, on purchase and sheriff's deed, to bring ejectment and to have the title of the donee held as void and the full legal title as vested in the purchaser; (2) or he might instead go into the court of equity and on the notion of bringing the prop- erty to sale under fair circumstances, have the fraud adjudged and a sale had by a decree of that court. Thigpen v. Pitt, 36 N. C. 79. The right of the creditor to proceed at law and to sell the property of the debtor conveyed on voluntary consideration was a legal right under the statute of Elizabeth and when once ex- ercised no court of equity would interpose at the instance of the purchaser to pass upon the legal title of the donee on the idea of removing a cloud from his title, nor at the instance of the donee on the idea that the deed to the purchaser was a cloud on his title. It was but a controversy between legal titles to land, to the trial of which courts of law were adapted, and hence equity did not in- terfere. The practice of non-interference for the purchaser to ad- judge upon the alleged fraudulent title of the donee was expressly decided in the case of Thigpen v. Pitt, supra, and non-interference at the instance of the donee to declare the purchaser's title a cloud on his title and remove the same, was settled in the case of Dameron v. Gold, 17 N. C. 17. In the last case. Chief Justice Kuffin says: "A person in possession under a legal title cannot sue another out of possession upon the ground of a pretended dis- tinct title and to have it declared invalid, unless there be a fraud imputed to it or some other matter peculiarly within this jurisdic- tion. These are pure questions of law and the party in possession may well be content with the advantage that possession gives him." Just so we think it is under our present system where the su- perior courts exercise both legal and equitable powers. The cred- itor has the right to sell the land of his debtor, Elizabeth Mobley, by execution, and if he does and buys it himself or another, then there will be the case of conflicting claims to the same property Sec. 8.] REMEDIES IN SPECIAI; CASES. 779' upon distinct legal titles, and the purchaser will soon have the title settled by an action to recover the land; or if he do not, the plaintiff, in the language of Judge Ruffin, may well be content with the advantage of her present possession, or in case of a dan- ger of the loss of evidence to sustain her title, or of the use of the sheriff's deed by the purchaser to hinder the sale of the property, she may possibly make a case of equitable intervention by way of perpetuating evidence or a decree against the validity of the pur- chaser's title under the head of removal of cloud upon the title. But the plaintiff's rights have not been interfered with, and may never be in any way other than what is legitimate by the pur- chaser when there shall be one. Granting it to be admissible for the court to adjudge upon the title deed of a purchaser after the sale is had, if instead of speedily asserting his title by action, he shall use it to impair the value of the land to the plaintiffs in the sale of it or otherwise, still we must hold there is no such case made by the complaint in this case- The embarrassment and irreparable injury alleged cannot at present be more than a mere expression of evil, as no sale has been made, and it may be the evil will never come, but whether it shall come or not, it is not in our opinion competent to restrain defendant from selling the land, as he has a right to do, lest a rival title grow up. There is no error, and the judgment of the court below is affirmed. In Hillyer v. LeRoy, 179 N. Y. at p. 375, 72 N. E. at p. 238, it is said : "The property of a debtor, which has been transferred by him in fraud of creditors, still remains, as to them, the debtor's property and the lien of the creditor's judgment attaches to the real estate. The judgment creditor may enforce his judgment by a sale of the land under execu- tion; or he may bring an action to remove the obstruction caused by the debtor's fraudulent act and proceed to enforce his judgment by a sale of the land unembarrassed by the cloud of the transfer." In Cle- land V. Taylor, 3 Mich. 201, it is held that a creditor may obtain judg- ment, sell the land fraudulently conveyed, and he, or whoever happens to be the purchaser, may bring ejectment for the same — in which action the purchaser may attack the title of the fraudulent grantee. If he does so successfully, he will recover. But, if the creditor prefer it, he may sue in equity to set aside the fraudulent conveyance and subject the land thereby conveyed to his claim. See also Malford v. Patterson, 35 N. J. L. at pp. 132, 133. "In cases where the legal title to the property is such that it cannot be seized under execution, resort to equity is nec- essary — as where the legal title never has been in the debtor, having been conveyed by a third person directly to another, in secret trust for the benefit of the debtor with a design fraudulently to screen it from his creditors." But where the legal title has been in the debtor and he fraudulently conveys it, judgment, sale under execution, and ejectment may be resorted to, if preferred. Ibid, at p. 133. One who purchases land sold under execution, may go into equity to attack the title of the fraudulent vendee of the person whose land was thus purchased and sold. Gerrish v. Mace, 9 Gray (Mass.) 235; see also 15 L. R. A. 784, briefs and notes; but see Thigpen v. Pitt, 64 N. C. 49, as to the proposition in 9 Gray, 235. Can life insurance be reached by creditors? 4 L. R. A. (N. S.) 454, and note; 79 N. C. 303; Revisal. §§ 4771, 4772. For right of husband's creditors to reach the fruits of his mangement of, or services in connection with, his wife's separate 780 REMEDIES IN SPECIAL CASES. [Ck. 9. estate or business, see 23 L. R. A. (N. S.) 1124, and note; Mordecai's L. L. 291; 21 L. R, A. 629, and note. See "Execution," Century Dig. § 510; Decennial and Am. Dig. Key No. Series § 171; "Fraudulent Con- veyances," Cent. Dig. §§ 660-664; Dec. and Am. Dig. Key No. Series § 230. GENTRY V. HARPER, 55 N. C. 177. 1855. Land Purchased, by the Debtor, But Title Made to a Third Person. [Bill to subject the equitable estate in certain lands to the payment of the debts of William Harper. William Harper being indebted con- tracted to purchase the land from Jacob Waters. It was charged in the plaintiff's bill, that Harper, with intent to defraud his creditors, caused Waters to contract to convey the land to Elizabeth, Harper's infant daughter, instead of to William Harper who bought it and paid for it. No conveyance had been made by Waters at the time this suit was brought. William Harper, Elizabeth Harper and Waters were all made defendants. William Harper demurred, and the cause was transferred to the supreme court for trial. Demurrer overruled.] Pearson, J. Prom the principles decided in Gowan v. Rich, 23 N. C. 533, and Dobson v. Erwin, 18 N. C. 570, it is clear that the debtor has not such an equitable or trust estate as is liable to be sold under an execution at law; and it is equally clear that he has such an interest in the land as a court of equity will subject to the claims of creditors, upon the broad ground, that it is against conscience for debtors to attempt in any way to withdraw property or effects from the payment of debts. If the courts of common law cannot reach the debtor's interest, a court of equity will. Demurrer overruled. Under the present statutes of North Carolina, it is held that a dock- eted judgment is not a lien on land purchased by a judgment debtor, if the title be made to a third person with intent to defraud creditors of the real purchaser. The creditors can subject such land by an action. Dixon v. Dixon, 81 N. C. 323. See "Fraudulent Conveyances," Century Dig. § 662; Decennial and Am. Dig. Key No. Series § 230. BURTON V. FARINHOLT, 86 N. C. 260. 1882. Remedy When Fraudulent Grantor Is Dead. [Action by an administrator to subject funds in the hands of his in- testate's next of kin and assigns, to the payment of intestate's debts. Substantially, the complaint alleged that the fund in question arose from chattel property given to defendants by the intestate at a time when the intestate owed debts, and that the intestate did not retain, at the time of the gift, assets sufficient to satisfy such debts. Defendants demurred. Demurrer overruled, and defendants appealed. Reversed. Several questions were raised by the demurrer and upon the argu- ment — one of which was: "Whether the plaintiff as administrator can maintain this action, or whether he is estopped by the assignment of his Sec. 8.] REMEDIES IN SPECIAL CASES. 781 intestate?" Only that part of the opinion which bears upon this ques- tion, is here inserted.] EuFPiN, J. . In Coltraine v. Causey, 38 N. C. 246, cited by counsel for the defendants, this cdurt ruled that an adminis- trator could not maintain a bill for setting aside a deed on the ground that it was given by his intestate to defraud creditors, for that, he occupied the exact relation to the deed that his intestate did, and was equally estopped thereby, but that the defrauded creditors might have their action against the fraudulent alienee as executor de son tort. To the same effect are the cases of McMorine V. Storey, 20 N. C. 329, and Sturdivant v. Davis, 31 N. C. 365. But the most striking instance of the application of the rule is found in Norfleet v. Riddick, 14 N. C. 221, in which case a regu- lar administrator, who held property of his intestate under a con- veyance fraudulent as to his creditors, was sued by them, as ex- cutor de son tort. And their action was sustained. In discussing its propriety, Chief Justice Henderson said, it must be so from necessity ; that the conveyance operated alike as an estoppel on the intestate and his administrator, but did not bind the creditors as to whom it was void; and as they could not reach the property through the defendant as administrator, they must be allowed to have their action against him as executor in Ms oivn wrong, or else there must be a failure of justice. From a resolution of the court, so explicitly pronounced and reiterated, we do not feel at liberty to depart because of any diiflculty that may exist (as is suggested) in enforcing it under the present law touching the ad- ministration of deceased persons' estates; at least, not without some more specific expression of the legislative vnll to that effect than is to be foimd in any law yet enacted. Winchester v. Gaddy, 72 N. C. 115, and Henry v. Willard, 73 N. C. 35, were both actions, brought under the present system, against the defendants as executors de son tort; and while the plaintiff failed in both, on other grounds, there was no suggestion in either case of any difficulty in maintaining such actions because of the law which directs a pro rata application of the assets, and we cannot suppose so important a matter was overlooked. Whether in such an action, instituted at this day, the plaintiff will be permitted to sue in his o^\'n name and thereby acquire a preference in the particular assets recovered, or whether he shall sue, as in a creditor's bill, for himself and all others alike inter- ested, are questions not now necessary to be determined, and too important to be lightly determined, especially, as we do not find ourselves in the present state of the argument fully in accord with regard to them. But be it either -way. we apprehend it will be found in actual practice to interfere with the general administra- tion of estates by lawful representatives, less frequently and seri- ously than seems to be supposed, and certainly not sufficiently so to justify the court in dispensing with a long and well established principle of law. 782 REMEDIES IN SPECIAL CASES. [Cll. 9. The plaintiff being estopped by his intestate's act of assignment to deny the title of the defendants to the policy or its proceeds, cannot maintain this action, and the judgment of the court below is therefore reversed, and the demurrer sustained. Reversed. The personal representative may now, in North Carolina, maintain an action in such cases as that presented by the principal case. This was first introduced into the law of the state by the Revisal of 1905, sec. 50. The personal representative was empowered to subject lands fraudulently conveyed by his decedent by the act of 1846 — the remedy being by proceedings to make real estate assets. See Rhem v. TuU, 35 N. C. 57, for a construction of that act. The act of 1846 as now incor- porated into the statutes, is Revisal, sec. 72. See McCaskill v. Graham, 121 N. C. 190, 28 S. E. 264. That there is a conflict of authority as to the ruling of the principal case, see Woerner's Am. L. of Adm. sec. 296, where the two lines of authority are given. See "Executors and Administrators," Century Dig. § 309; Decennial and Am. Dig. Key No. Series § 57; Century Dig. § 290; Decennial and Am. Dig. Key No. Series § 96. Sees. 1, 2.] EXTRAORDINARY REMEDIES. 783 CHAPTER X. EXTRAORDINARY REMEDIES. Sec. 1. Habeas Corpus. This remedy has been sufficiently treated in Chap. 5, § 8, a; Chap. 6, § 1, a, and § 2, a. Sec. 2. Prohibition. CONNECTICUT RIVER R. R. v. COUNTY COMRS., 127 Mass. 50, .57-60. 1879. Tiie Remedy by ProhiHtion Explained. [Petition for a writ of prohibition, filed in tlie supreme court and there disposed of. The manager of Troy and Greenfield R. R. and Hoosac Tunnel, a corporation, acting under a statute, filed a petition for the condemnation of certain lands of the Connecticut River R. R. under emi- nent domain. The proceeding was filed before the defendants, and was in accordance with Ihe statute referred to. The Connecticut River R. R. having been served with notice to appear before the defendants to answer such proceedings, objected to the jurisdiction of defendants. The de- fendants overruled such objection but postponed the hearing to a future day. Thereupon this petition for a writ of prohibition was filed against the defendants, upon the ground that the statute under which they were acting was unconstitutional. The court granted the petition and ordered the writ to issue. Only so much of the opinion as discusses the remedy by writ of prohibition, is here inserted.] Gray, C. J. ... A writ of prohibition issuing from the highest court of common law is the appropriate remedy to restrain a tribunal of peculiar, limited, or inferior jurisdiction from taking judicial cognizance of a ease not within its jurisdiction. 3 Bl. Com. 112; Washburn v. Phillips, 2 Met. 296. The power of issu- ing the writ was habitually exercised by the principal courts of common law in England, and by the superior court of judicature of Massachusetts under the Province Charter. The earlier acts of the Province establishing the superior court of judicature were disallowed by the king in council. Prov. Sts. 1692-3 (4 W. & M.) , e. 33; 1697 (9 "Will. 3), c. 9; 1 Prov. Laws (State ed.), 72, 73, 284, 285 ; Anc. Chart. 217, 221. But the act of 1699-1700 (11 Will. 3) , c. 3, under which that court existed until the American Revolution, conferred upon it a very extensive jurisdiction of pleas of the crown and civil actions, "and generally of all other matters, as fully and amply to all intents and purposes whatsoever as the 784 EXTRAORDINARY REMEDIES. [Ch. 10. courts of King 's Bench, Common Pleas and Exchequer within his Majesty's kingdom of England have or ought to have." 1 Prov. Laws, 370, 371 ; Anc. Chart. 330. Under that act, the superior court of judicature frequently issued writs of prohibition to the court of Vice Admiralty. See, for examples of this, Thomas v. Calley, Rec. 1716, fol. 143; Hutchinson v. Wyboume, Rec. 1716, fol. 169 ; Harming v. Wyre, Rec. 1717, fol. 177 ; Manderson v. Hughs, Rec. 1718, fol. 259; Tilton's case, Rec, 1720. fol. 338; Dummer's Defense of New England Charters (1721). 63. 64; Scollay v. Dunn (1763), Quiney, 74. . . . In the present case, if the proceedings for the assessment of damages had gone on to final judgment, they might indeed have been quashed by writ of certiorari. Charlestown Branch Railroad v. County Comrs., 7 Met. 78; Charles River Branch Railroad v. County Comrs., 7 Gray, 389 ; Farmington River Water Power Co. V. County Comrs., 112 Mass. 206. But the fact that the remedy by petition for writ of certiorari will be open tO' the landowner after final judgment affords no reason why the court should now refuse a writ of prohibition, and thereby put the petitioner to the trouble, expense and delay of a trial before a tribunal which has no juris- diction of the case, and to whose jurisdiction the petitioner has objected at the outset of the proceedings. Gould v. Gapper, & East, 345, 367, 371; Burder v. Veley, 12 A. & E. 233, 263, 265, 313, 314; Vermont & Massachusetts Railroad v. County Comrs., 10 Cush. 12. The relief sought by bill in equity in Talbot v. Hud- son, 16 Gray, 417, was to restrain the pulling down of a mill-dam by executive officers, not to prevent a judicial hearing and deter- mination by a tribimal transgressing its jurisdiction. The fact that an agent of the commonwealth is the adverse party in the proceedings before the county commissioners affords no reason for refusing the writ. A writ of prohibition, like a. writ of mandamus or of certiorari, is properly sued out in the name of the crown or the state; the only necessary defendant is the tri- bunal whose: proceedings are sought to be restrained, controlled or quashed; ancl there is no class of cases in which the authority to issue writs of prohibition is better established than in those cases of courts martial, acclesiastical courts, or inferior courts of com- mon law, assuming to take cognizance, in excess of their jurisdic- tion, of criminal prosecutions. Washburn v. Phillips, above cited ; Grant v. Gould, 2 H. Bl. 69 ; Com. Dig. Prohibition, P. 6 ; Searle V. Williams, Hob. 288 ; The Queen v. Herford, 3 El. & El. 115 ; Zylstra v. Corporation of Charleston, .1 Bay, 382. Writ of prohibi- tion to issue. See "Prohibition," Century Dig. § 31; Decennial and Am. Dig. Key No. Series § 6. Sec. 2.] EXTRAORDINARY REMEDIES. 785 STATE V. WHITAKER, 114 N. C. 818, 19 S. E. 376. 1894. Prohibition. Explanation of the Remedy Continued. [Application filed in the supreme court by the defendants in a case pending before the mayor's court of the city of Raleigh — the case being entitled State v. Whitaker et al. The application to the supreme court was that a writ of prohibition might issue to the mayor's court to stop further proceedings in the case. The grounds assigned for the applica- tion were: (1) That the ordinance, for the violation of which the de- fendants were prosecuted, was invalid; (2) Because a jury trial had been denied.] Clark, J. The defendants apply for a writ of prohibition to issue to Thomas Badger, mayor of the city of Raleigh, upon the ground that the city ordinance, for the violation of which they are being tried, is invalid, and because a trial by jury had been re- fused them. The writ of prohibition existed at common law, and is also au- thorized by the constitutional provision (article 4, § 8) which gives the supreme court "power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts." In this state this writ can issue only from the supreme court. Perry v. Shepherd, 78 N. C. 83. The writ of prohibition is the converse of mandamus. It pro- hibits action, while mandamus compels action. It differs from an injunction, which enjoins a party to the action from doing the forbidden act, while prohibition is an extraordinary judicial writ, issuing to a court from another court having supervision and con- trol of its proceedings, to prevent it from proceeding further in a matter pending before such lower court. It is an original remedial writ, and is the remedy afforded by the common law against the encroachment of jurisdiction by inferior courts, and to keep them within the limits prescribed bv law. 19 Am. & Eng. Bne. Law, 263, 264; High, Extr. Eem. § 762. It is settled that this writ does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal, or by recordari or cer- tiorari in lieu of an appeal. Nor is it a writ of right, granted ex debito justitiae, like habeas corpus, but it is to be granted or with- held according to the circumstances of each particular case. Be- ing a prerogative writ, it is to be used, like all such, with great caution and forbearance, to prevent usurpation, and secure regu- larity, in judicial proceedings, where none of the ordinaiy reme- dies provided by law mil give the desired relief, and damage and wrong will ensue pending their application. High, Extr. Rem. §§ 765, 770. In the present case the mayor's court has jurisdiction of the persons of the defendants, and of the subject-matter, which is the alleged violation of a town ordinance. If the ordinance in ques- tion is invalid, that matter can be determined on appeal to the superior court, and by a further appeal, if desired, thence to this court. This has been often done.' There is no palpable usurpation Remedies — 50. 786 EXTBAOKDINAEY REMEDIES. [67(. 10. of jurisdiction, or abuse of its authority, nor likelihood of injury to defendants, which calls for the extraordinary process of this court, by prohibition, to stop the action of the lower court. It is more orderly to proceed in the regular way, — to have an alleged error of this kind corrected on appeal. The writ might properly issue where the court below has no jurisdiction of the subject- matter, as, for instance, if a justice of the peace should attempt to try a defendant for larceny, or decree foreclosure of a mort- gage ; but even in that case it would rest in the discretion of the supreme court whether the matter should be left to correction bj appeal, or bj' treating such judgment as a nullity. As to the denial of a jury trial by the mayor, it is pointed out by Smith, C. J., in State v. Powell, 97 N. C. 417, 1 S. B. 482, that under the present constitution (article 1, § 13) the legislature is authorized to vest the trial of petty misdemeanors in inferior courts, without a jury, if the right of appeal is preserved. It was otherwise under the former constitution, under which State v. Moss, 47 N. C. 66, was decided. The guaranty of a trial by jury in the sixth and seventh amendments to the constitution of the United States applies only to the federal courts, and is not a re- striction on the states, which may provide for the trial of criminal and civil cases in their own courts, with or without jury, as au- thorized bv the state constitution. Cooley, Const. Lim. (6th ed.) 30 ; Walker v. Sauvinet, 92 U. S. 90 ; Munn v. Illinois, 94 U. S. 113. There are instances, though infrequent, when this writ has been invoked. It has been granted where, after a conviction for felony, the court has, at a subsequent term, granted a new trial upon the merits, without any legal authority for so doing. Quimbo Appo v. People, 20 N. T. 531. It is also the appropriate remedy, pending an appeal from an inferior to a superior court, to prevent the former from exceeding its jurisdiction by attempting to execute the judgment appealed from, or to prevent a circuit court exceeding its powers lay issuing an unauthorized writ of er- ror and supersedeas to a county court, and interfering improperly with the jurisdiction of the latter. Supervisors v. Gorrell, 20 Grat. 484. Also, to prevent an inferior court's interfering with, or attempting to control, the records and seal of the superior court by injunction. Thomas v. Mead, 36 Mo. 232. It lies to prevent a probate court exercising jurisdiction over the estate of a deceased person when it cannot lawfully do so. U. S. v. Shanks, 15 Minn. 369 (Gil. 302). Or where justices of the peace are proceeding, without authority of law, to abate a supposed nuisance, prohibi- tion lies to stay their action. Zylstra v. Charleston Corp., 1 Bay, 382. These are cited as illustrations, but in each case it is in the discretion of the supreme court whether the writ shall be granted. Prohibition does not issue to restrain ministerial acts, but only to restrain judicial action where the latter would be a usurpa- tion and cannot be adequately remedied by an appeal. 19 Am. & Eng. Bnc. Law, 268, 269. It issues to and acts upon courts as an injunction acts upon parties, and, like an injunction, it Sec. 3.] EXTBAOEDINARY REMEDIES. 787 does not lie where adequate remedy can be had by the ordinary process of the courts. "When entertained, the usual course, un- less prior notice of the petition has been given, is to issue a no- tice to the lower court to show cause why the writ should not issue, and to order a stay of proceedings in the mean time. Id. 280, 281. In the present case, if the defendants are con- victed upon an invalid ordinance, there is ample remedy by appeal. The constitution does not guaranty a jury trial in such case, since the defendants have the right of appeal. If there is aught in the charter of the city which grants the defendants a trial by jury, if demanded, the error in the refusal could be cor- rected by a jury trial in the superior court. There is no emer- gency which requires the court to issue the writ prayed for. Pe- tition denied. For the superintending control of inferior tribunals by writs of pro- hibition, mandamus, etc., and of courts martial by civil courts, see 51 L. R. A. 33, and elaborate note; 20 lb. (N. S.) 413, 942, and notes. That the writ has been but little used in North Carolina, see Perry v. Shep- herd, 78 N. C. 83. It does not lie to interfere with a de facto officer in the discharge of his duties during the pendency of a controversy over the title to the office. State v. Allen, 24 N. C. 183. It Is never used as a remedy for acts already done, but only to prohibit the commission of an act threatened. United States v. Hoffman, 4 Wallace, 158. The pres- ent practice in North Carolina is pointed out in Railroad Co. v. Newton, 133 N. C. 136, 45 S. E. 549. The writ issues from the supreme court alone; its issue in any case is a matter of sound discretion and is con- fined to cases of extreme necessity. Ibid. For a general discussion of the remedy, see 9 L. R^A. 59 and note; Hughes on Proc. 1096; 32 Cyc. 598-632. See "Prohibition," Century Dig. §§ 4-19; Decennial and Am. Dig. Key No. Series § 3. Sec. 3. Mandamus. REX v. BARKER, 3 Burrows, 1265, 1267. 1762. Nature of Remedy. When Mandamus Will and Will Not Issue. Prac- tice. Lord Mansfield's Form of the Rule to Show Cause. [On Wednesday, 10th of June, 1761, Mr. Norton moved for a mandamus to be directed to the surviving trustees under a deed of release, made by one Charles Vinsen to John Enty, a dissenting minister of Plymouth, and other trustees, settling a then new-built meeting-house, etc., requiring them to admit Christopher Monds to the use of the pulpit thereof, as pastor, minister or preacher there; he, the said Christopher Monds, hav- ing been duly elected to such position. Mr. Norton produced an affidavit of the facts and of Mr. Monds' election, and of a demand and refusal of the use of the meeting-house.] Lord Mansfield. A mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown to the satisfaction of the court. The original nature of the writ and the end for which it was framed, direct upon what occa- sions it should be used. It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no 788 EXTRAORDINARY REMEDIES. [Gh. 10. specific remedy, and where in justice and good government there ought to be one. "Within the last century, it has been liberally interposed for the benefit of the subject and advancement of jus- tice. The value of the matter, or the degree of its importance to public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. "Writs of mandamus have been granted, to admit lecturers, clerks, sextons, scavengers, etc. ; to restore an alderman to pre- cedency, an attorney to practice in an inferior court, etc. Since the act of toleration, it ought to be extended to protect an endowed pastor of protestant dissenters, from analogy and the reason of the thing. The right itself being recent, there can be no direct an- cient precedent, but every case of a lecturer, preacher, schoolmas- ter, curate, chaplain is in point. The deed is the foundation or endowment of the pastorship. The form of the instrument is necessarily by way of trust : for the meeting-house, and the land upon which it stands, could not be limited to Enty and his successors. Many lectureships and other offices are endowed by trust-deeds. The right to the function is the substance, and draws after it every thing else as appurtenant thereto. The power of the trustees is merely in the nature of an authority to admit. The use of the meeting-hotise and pulpit, in this case, follows, by necessary consequence, the right to the func- tion of the minister, preacher, or pastor; as much as the insignia do the office of a mayor; or the custody of the books, that of a town-clerk. . . . Lord Mansfield directed the following rule to be drawn up : It is ordered. That the first day of next term be given to Pentecost Barker, Richard Dunning, Philip Cockey, and Elias Lang, to show cause why a writ of mandamus should not issue, directed to them, requiring them to admit Christopher Monds to the use of the pulpit in a certain meeting-house appointed for the religiotis worship of protestant dissenters commonly called Presbyterians, in Plymouth in the county of Devon, as pastor, minister or preacher thei-e. And it is further ordered, That the said Pente- cost Barker, Richard Dunning, Philip Cockey, and Elias Lang, do at the same time acquaint this court, ""Whether they insist upon the validity of the election of John Hanmer," and if not ""Whether they are willing to proceed to a new election of a min- ister, pastor or preacher there ; ' ' the prosecutor of this rule hav- ing declared his consent "To waive his claim, in order to a new election." And it is further ordered, That notice of this rule be given to the said John Hanmer, to the intent that he may be heard, as he shall be advised; and that he may acquaint this court ""Whether he insists upon the validity of his election," and ""Whether he is willing to have it tried in a feigned issue." Mr. Thurlow and Mr. Dunning now. gave answer, by direction of their clients, "That Pentecost Barker, Richard Dunning, Philip Cockey, and Elias Lang, do insist upon the validity of the elec- tion of John Hanmer, and that they are not willing to proceed to Sec. 3.] BXTEAORDINAKY REMEDIES. 789 a new election, etc. And that the said John Hanmer does insist upon the validity of his election, and is not willing to have it tried in a feigned issue." After which Mr. Thurlow and Mr. Dunning were heard again, in general, and argued strenuously against granting a mandamus. They knew the election of Han- mer could not be supported upon a trial. The election of Mends seems liable to objection as irregular. But, if the matter was proper for a mandamus, they were aware that in case neither was elected, the court would issue a mandamus "To proceed to an election;" in which case, the majority of the congregation were in- clined to Monds. The trustees therefore obstinately persisted in opposing a mandamus and refusing a trial. Lord Mansfield. Every reason concurs here for granting a mandamus. We have considered the matter fully, and we are all clearly for granting it. I have made a collection of cases on this subject, since the last argument; but I have it not here at present. Here is a function with emoluments; and no specific legal remedy. The right depends upon election; which interests all the voters. The question is of a nature to inflame men's pas- sions. The refusal to try the election in a feigned issue, or pro- ceed to a new election, proves a determined purpose of violence. Should the court deny this remedy, the congregation may be tempted to resist violence with force: a dispute "Who shall preach Christian charity," may raise implacable feuds and ani- mosities; in breach of the public peace, in the reproach of the government, and the scandal of religion. To deny this writ, would be putting protestant dissenters and their religious wor- ship out of the protection of the law. This case is entitled to that protection ; and cannot have it in any other mode, than by grant- ing, this writ. The defendants have refused either to go to a new- election, or to try it in a feigned issue. We were all of opinion, when a trial was proposed to them, that a mandamus ought to issue, in case of refusal. Their answer ought to be put into the rule as prefatory to it: and I do this, with a view that their re- fusal may be authentically given in evidence to the jury upon the trial. Many cases have gone as far as this, or farther. Mr. Justice Denison, Mr. Justice Foster, and Mr. Justice Wilmot, all declared themselves of the same opinion. The court ordered a mandamus to issue. In the report of this case in 1 W. Blackstone's Reports, 352, the fol- lowing is given as Lord Mansfield's opinion: "I think I have seen it in the books, that the first instance of a mandamus in the case of a cor- porator, was Bagg's case. And yet that was no objection to the granting it. A mandamus is certainly a prerogative writ, flowing from the king himself, sitting in this court, superintending the police and preserving the peace of this country; and will be granted, wherever a man Is en- titled to an oiBce or a function, and there is no other adequate legal remedy for it. Therefore it is not grantable for a living, because there the law has provided a specific remedy; but for a lectureship, where a profit or endowment is annexed to it, it is. Since the Act of Toleration, dissenters are entitled to all manner of legal protection. Charities to their mode of worship have been established since the revolution, 790 EXTRAORDINARY REMEDIES. [Gh. 10. though held to be superstitious before." For quo warranto to try title to an office in a private corporation, see Hankins v. Newell, section 4 post, and note to that case. See 19 L. R. A. (N. S.) 49, and note. See "Mandamus," Century Dig. § 263; Decennial and Am. Dig. Key No. Series § 128. LA GRANGE v. THE STATE TREASURER, 24 Mich. 468, 476-479. 1872. Mandamus Explained. When It Is the Appropriate Remedy. [Application for a mandamus, brought in the name of the People on the relation of the Township of La Grange v. The State Treasurer. "The relator having obtained an order on respondent to show cause why cer- tain municipal bonds, deposited with him under the railroad aid laws, should not be delivered up, he returns that he has been served with a subpoena in a case in equity, issued out of the circuit court of the United States under a bill filed by John E. Young against respondent, relator, and the Michigan Air Line Railroad Company, to obtain the same bonds for the company. This return being demurred to, the respondent relies upon two principal grounds: 1. That mandamus is not a proper remedy in such cases; and, 2. That the pendency of the chancery suit should stay It." Only so much of the opinion as bears upon the first ground of demurrer, is here inserted.] Campbell, J. ... In these cases of municipal bonds, the townships cannot be made to suffer for the legally wrongful ac- tion of their ofifieers, and they have a right to recall the unauthor- ized securities. The duty of the treasurer is not discretionary. It is their absolute right to demand, and his absolute duty to sur- render, what is held in the files of the office in their wrong. The duty is unconditional and it is clear. We are then to consider whether a mandamus is the proper remedy for a refusal to comply with this duty. It was urged on the argument that this writ will only lie where there is a positive statutorj^ duty and an entire absence of any other remedy. And it is claimed that the decisions heretofore made sustain this view. We do not know of any such doctrine, and have never understood it to have been established in this state, or elsewhere. In the frequent instances of application for this writ, the occasion has quite as often been to enforce duties not im- posed by statute, as obligations which were statutory. There may very possibly be found isolated expressions, which, apart from their context and the occasion of their utterance, might favor one of the grounds claimed. Thus, in People v. Judges of the Branch Circuit Court, 1 Doug. Mich. 319, it was said there must be "no other remedy." In that case there was a better remedy in the or- dinary course of law which reached all that could be desired. But- in People v. Judge of the Wayne Circuit Court, 19 Mich. 296, the doctrine was laim down more guardedly, that a relator must show "a clear legal right, and that there is no other adequate remedy." And in People v. State Insurance Company, 19 Mich. 392, it was expressed more fully that the writ might issue for a specific duty where there is no other "specific and adequate remedy." StC. 3.] EXTRAORDINARY REMEDIES. 791 Blackstone very clearly defines the jurisdiction in a few words. He says it lies "where the party hath a right to have any thing done, and hath no other specific means of compelling its perform- ance." 3 Bl. Com. 110. In Rex v. Windham, Cowp. 377, Lord Mansfield adopts a statement of Mr. Kenyon, "that where there is no other legal specific remedy to attain the ends of justice, the course must be by mandamus, which is a prerogative writ." In Rex V. Barker, 3 Burr. 1265, he says: "Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one. "Within the last century it has been liberally interposed for the benefit of the subject, and the advancement of justice. The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied." And in Rex V. Vice Chancellor of Cambridge, 3 Burr. 1647, he says again: "This is the very reason of the court's issuing the prerogative writ of mandamus, because there is no other specific remedy." The other judges were equally emphatic. For most rights the ordinary legal remedies are ample to pre- vent a failure of justice, as upon private contracts a judgment for damages will usually suffice. But there are cases where, if con- tracts cannot be enforced specially, there will be a failure of jus- tice ; and as the law can give no specific remedy in such cases parties are compelled to resort to equity. If the law had the requi- site machinery, no doubt it would so interfere as to render a re- sort to equity needless. And in all cases where it can enforce rights specifically, and no other relief is adequate, it certainly would be unjust not to do so. Unfortunately its powers are lim- ited. But in cases where the right is clear and specific, and public ofiicers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mans- field, of enforcing specific relief. It is the inadequacy, and not the mere absence of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the pro- priety of the writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it is usually practicable. The question then arises whether there is any other adequate, specific, legal remedy. Courts of law do not, in deciding such questions, take into account remedies in equity. They may be regarded in determining the exercise of discretion in allowing the writ, but they cannot affect the jurisdiction. There is no case where a court of law has its jurisdiction cut off by the existence of equitable remedies. The rule is the reverse — that equity will not interfere if legal remedies are adequate. There is the strongest possible reason why a party should not be turned over to the tedi- ous and dilatory process of a long suit, wlien there are no issues that need it. The only question that could arise in the class of 792 BXTEAOEDINABY REMEDIES. [Ch. 10. cases now before us is, whether the bonds are in the possession of the respondent. If they are, the right to have them restored is a legal conclusion not open to question. The same reasons would apply to render it improper to turn a party over to a suit in replevin, if there were not still more serious objections to it, as well as doubts of its applicability. The remedy would not only involve a needless legal contention, but it is not a proper or lawful thing to allow a sheriff, on such a writ, to inter- meddle with public papers. The policy of the law requires them to be guarded by their official custodian, and it would be a mon- strous abuse if the state offices could be exposed to the visitation cf ministerial officers who might be commanded by a writ, issued without the previous order or supervision of a court, to seize upon and deliver over to any one who should sue out the proc- ess, any document or muniment to be found there. Such a claim would be preposterous. A mandamus is the only admissible writ to coromand public officers to produce and give up papers in their custody. The writ must be granted as prayed. And we trust it will not be necessary hereafter to interpose for the same pur- pose. For tlie distinction between Mandamus and Quo Warranto, see Brown V. Turner, 70 N. C. at p. 104. Mandamus Is no longer a prerogative writ. Ibid, at p. 105. If the relief sought be, to get possession of an office — official position — already filled iy another, the remedy is quo warranto; if to get possession of — be inducted into — an official position not filled iy another, the remedy is mandamus. Lyon v. Comrs., 120 N. C. 237, 26 S. E. 929, and see also Cunningham v. Sprinkle, 124 N. C. 638, 33 S. E. 138, 1 L. R. A. (N. S.) 588, 13 lb. 661, 19 lb. 49, and notes. If a term of office to which the plaintiff or relator seeks to be inducted, expires before final judgment, the court must dismiss the action. Col- vard V. Comrs., 95 N. C. 515. See "Mandamus," Cent. Dig. §§ 8, 135; Dec. and Am. Dig. Key No. Series §§3, 73. SQUIER V. GALE, 6 N. J. L. 157. 1822. Mandamus From a Superior to an Inferior Court. [Upon an application to the supreme court for a mandamus to the court of common pleas to compel that court to grant a new trial in the above entitled action which had been finally determined in that court, a rule was issued that the court of common pleas show cause why the mandamus should not issue. The judges of the court of common pleas answered the rule, and stated that after a verdict in the case a new trial was moved for on the sole ground that the verdict was against the weight of the evidence; that the motion was overruled because to grant it was beyond the powers of the court, in the court's opinion.] KiRKPATEiCK, C. J. In this case the court are of opinion — 1. That though a mandamus will lie to an inferior court to com- mand them to proceed to judgment, yet it will not lie to command them to proceed to any particular judgment; and much less to command them to set aside a verdict and grant a new trial, or even to grant a rule to show cause for that purpose. 2. That the Sec. 3.] EXTBAOEDINAEY REMEDIES. 793 courts of common pleas have, by the constitution of the said courts, and by the principles of the ancient common law, a right to set aside verdicts and grant new trials ; and that they have this right, as well in cases of appeal under statute as in other cases. In Hudson v. Parker, 156 U. S. at p. 288, 15 Sup. Ct. at p. 454, it is said: "The discretion of a judge, indeed, in a matter entrusted by law to liis judicial determination, cannot be controlled by writ of mandamus. But if he declines to exercise his discretion or to act at all, when it is his duty to do so, a writ of mandamus may be issued to compel him to act. For instance, a writ of mandamus will lie to compel a judge to settle and sign a bill of exceptions, although not to control his discre- tion as to the frame of the bill." Several authorities are cited from the United States Reports for this position. For the law generally as to when the writ will issue to judges and courts, see In re Blake et als., 175 U. S. 114, 20 Sup. Ct. 42; Biggs ex parte, inserted at section 8, post; 26 Cyc. 188. For when the writ will or will not issue to the executive department or to the officers thereof, see People ex rel. Broderick v. Morton, 156 N. Y. 136, 50 N. B. 791; Rose's Notes to U. S. Rep. vol. 6, p. 623, and Vol. 10, p. 536; White v. Ayer, 126 N. C. 570, 36 S. E. 132; Keim v. United States, 177 U. S. 290, 20 Sup. Ct. 574. The writ will not issue against the legislature or its officers. Scarborough v. Robinson, 81 N. C. 409. For when it will issue to a pri- vate corporation, see Am. Ry. Frog Co. v. Haven, 3 Am. Rep. at p. 383; 26 Cyc. 338; Hughes v. N. C. Bapt. Church, 75 N. J. L. 167, 67 Atl. 66, which last case holds, that the writ will issue to re-instate one turned out of a church membership. For other instances of the use of man- damus, see 6 L. R. A. (N. S.) 750, 12 lb. 166, and notes (to executive department); 6 lb. 782, and note (to officers of municipal corporation to enforce franchises granted by the corporation); 7 lb. 525, and note (to control the discretion of municipal officers); 20 lb. 801, and note (to force municipal officers to perform contracts); 1 lb. 963, 3 lb. 153, 13 lb. 1084, and notes (to public service corporations to enforce duties to individuals); 3 lb. 1115, 20 L. R. A. 355, and notes (to medical col- leges, etc., to compel the issuing of a diploma). For statutory provisions in North Carolina, see Pell's Revisal, sees. 822- 824, and notes. That a mandamus will not issue as a substitute for a writ of error or certiorari to review the judgment of a court, see Biggs ex parte, inserted at sec. 8, post. That mandamus is no longer a pre- rogative writ in North Carolina, see Brown v. Turner, 70 N. C. at p. 105. See note to State v. Whitaker, 114 N. C. 818, inserted in sec. 2, ante. See "Mandamus," Century Dig. § 64; Decennial and Am. Dig. Key No. Series § 28. LUTTERLOH v. BOARD OF COMRS. OF CUMBERLAND CO., 65 N. C. 403. 1871. Practice. AUemative and Peremptory Mandamus. [The plaintiff obtained a number of judgments against the defendants, who constituted the board of county commissioners of Cumberland, county, on the indebtedness of the county to the plaintiff — the judgments being, in effect, against the county as a municipal corporation. As the judgments were not paid, and as executions issued thereon were returned unsatisfied, the plaintiff undertook to obtain a mandamus from the su- perior court of Cumberland county to force the county commissioners to levy a tax sufficient to pay his judgments. A rule to show cause, why the mandamus should not issue, was served on the defendants. They moved to dismiss the proceeding. Motion refused, and a peremptory 794 EXTBAOEDINARY REMEDIES. [Ch. 10. mandamus was ordered, commanding the defendants to levy the tax, etc. Defendants appealed. Affirmed.] Dick, J. The plaintiff has established his debt against the county of Cumberland by judgment duly docketed; and as he cannot enforce payment by an execution, he is entitled to a writ of mandamus against the board of commissioners to compel them to levy a tax for the satisfaction of said judgment. Gooch v. Gregory, 65 N. C. 142. There is no provision in the C. C. P., regulating the proceed- ings in writs of mandamus, and in such cases "the practice here- tofore in use may be adopted, so far as may be necessary, to pre- vent a failure of justice." C. C. P. § 392. The writ of mandamus is an extraordinary remedy, and can only be used by the express order of a court of superior jurisdiction, and is not governed by the rules prescribed for the prosecution of ordinary legal reme- dies. State V. Jones, 23 N. C. 129. It is not embraced in the rule established in Tate v. Powe, 64 N. C. 644, which defines the dis- tinction between civil actions and special proceedings. This high prerogative writ may be obtained from the superior court, and the applicant must show by petition or affidavit that he has a specific legal right, and has no adequate legal remedy to en- force it. If the ease presented by the applicant shows that the rights of the parties are unadjusted, and there may be facts in dis- pute, the first process is an alternative mandamus, or a rule to show cause, which is in the nature of an alternative mandamus. In all cases the defendant is entitled to reasonable notice to make his defense ; and the manner of service and the day of return are matters within the discretion of the court. "When the rights and liabilities of the parties are ascertained and determined by the judgment of a court of superior jurisdiction, and the judgment cannot be enforced by an execution, there is no reason why the court may not grant a peremptory mandamus in the first instance. upon a rule to show cause, etc. In our case there are judgments of the court establishing the rights of the plaintiff; those rights cannot be enforced by execution ; the motion for a rule to show cause was founded upon affidavits ; service of the rule was ac- cepted by the defendants, and only a technical defense was made. We think his honor was right in granting a peremptory manda- mus, and the judgment is affirmed. See "Mandamus," Century Dig. §§ 325, 405; Decennial and Am. Dig. Key No. Series §§ 159, 180. FRY V. COMMISSIONERS OP MONTGOMERY, 82 N. C. 304. 1880. Practice. .Alternative and Peremptory Mandamus. [Plaintiff sued the defendants upon a debt of the county, and asked judgment for the debt and that a mandamus issue to compel defendants to levy a tax and apply the amount so collected to the satisfaction of his claim. Defendants did not answer, and judgment by default was en- tered for the debt and that a mandamus issue as prayed for — such man- Sec. 3.] EXTEAOBDINARY REMEDIES. 795 damns to issue at the expiration of six montlis. The writ was issued and served, but no attention was paid thereto by the defendants. There- upon notice was issued to the defendants to show cause, if any they had, why a peremptory mandamus should not issue commanding them to levy the tax and satisfy the plaintiff's judgment. The defendants an- swered that they had levied all the taxes they were empowered to levy, and that the money so raised was entirely consumed in the payment of the current expenses of the county, etc. Thereupon the judge ordered an alias peremptory mandamus to issue commanding the defendants to levy the tax and pay the plaintiff's judgment. From this order the defendants appealed. Affirmed.] DiLLARD, J. It is settled by the decisions of this court that a party may sue to recover a debt from a county, and in the same action may demand a mandamus for its payment. McLendon v. Comrs. of Anson, 71 N. C. 38 ; Lutterloh v. Comrs. of Cumber- land, 65 N. C. 403. The mandamus issued on the establishment of a debt by judgment is usually an alternative mandamus and on insufficient cause shotvn for non-compliance therewith the course is to issue a peremptory mandamus. Tucker v. City of Raleigh, 75 N. C. 272. . . . Unquestionably a creditor of a county having an action to re- duce his debt to judgment, is entitled to some means to enforce payment. He cannot have a fi. fa. effectual as on a judgment against a natural person, and in such case the writ of mandamus in the nature of an execution is the onlj' means by which to have anj' fruit of his recovery. On the rendition of the judgment the creditor generally has an alternative mandamus to which a return is to be made, and if good cause be not shown for failing to do the thing required, then a peremptory mandamus issues. And if a peremptory writ issue and the return thereto do not set forth obedience or a good legal excuse therefor, it is the creditor's right to move for compulsory obedience by process of attachment (for contempt). In this case the first writ issued was in form peremptory, but the creditor treated it as an alternative writ in the form of his notice calling on defendants to show cause against the issue of a per- emptory one, and so was it regarded by his honor; and thus de- fendants had the same opportunity of defense against the issuing of the last writ, as if the first had been technically an alternative mandamus. This writ, we have said, is in the nature of an execu- tion, by means of which payment is to be had. It is for the cred- itor's benefit and may be issued or not, as he may ask. The cred- itor may enforce a return to the writ or not, and may waive or in- sist on process of attachment for disobedience. The court will not be an actor and ex mero motu compel the earliest possible rais- ing of the money in the case of an individual creditor, but will apply the law and award whatsoever process the law allows, if moved so to do by the party to be benefited. No good reason appears to us why the plaintiff, even if the first writ were a peremptory mandamus, might not waive application for process of attachment on the coming in of the return thereto, 796 EXTRAORDINARY REMEDIES. [CJl. 10. and have an alias peremptory writ, thus giving defendants an- other opportunity to obey the command of the law. Upon the question of the sufficiency of the cause shown by de- fendants in answer to plaintiff's notice for the writ to authorize process of attachment, it is not necessary to express any opinion, as the creditor did not ask for, nor did his honor pass upon his right to have such process. The complaint made of his honor's order for a peremptory mandamus on the motion of the plaintiff, instead of proceeding of his own motion as for contempt by at- tachment, seems to us most unreasonable. The writ as issued was an indulgence to defendants, and gave further day of obedience, and it seems singular that defendants or any debtor should com- plain of not being forced to pay a debt as quickly as strict law might permit. We think there was no error in ordering the alias peremptory mandamus as moved for by plaintiff, and the judgment below is affirmed. "It is settled that, ordinarily, the only remedy of a judgment creditor -of a county is a writ of mandamus to compel its commissioners to levy a tax to pay the debt. Gooch v. Gregory, 65 N. C. 142; 2 Dillon on Mun. Corp. (3rd ed.) sees. 855, 856; Pegram v. Comrs., 64 N. C. 557; Lutter- loh V. Comrs., 65 N. C. 403; Rogers v. Jenkins, 98 N. C. 129. Where a plaintiff brings his action to recover the debt, and, in his complaint, demands a mandamus, as well as a judgment for the debt, the courts issue first an alternative mandamus, and if the answer thereto be in- sufficient, a peremptory mandamus is allowed. Fry v. Comrs., 82 N. C. 304." Hughes v. Comrs., 107 N. C. at p. 605, 12 S. E. 465. See further on this subject. 26 Cyc. 470, 487. For the general practice in North Carolina in mandamus proceedings, see Pell's Revisal, sees. 822-824, and notes. "The rule of res judicata applies to the judgment for a peremp- tory writ of mandamus, and all questions raised, or which could have been raised, in opposition to granting the writ, are concluded by the is- sue of the writ, and cannot be raised again in resisting obedience, or in justification of disobedience." 26 Cyc. 496. See "Mandamus," Century Dig. § 231; Decennial and Am. Dig. Key No. Series § 111. Sec. 4. Quo Warranto. REX V. MARSDEN ET ALS., 3 Burrows, 1812, 1817. 1765. Definition and Nature of the Writ of Quo Warranto. Is It a Civil or Criminal Proceeding? [Sir Fletcher Norton moved for an information in the nature of a quo warranto against the defendants for holding a public fair or mar- ket at Wakefield. Among other things, it was said by Wilmot, J. : ] The present question is ' ' whether the crown 's name can be made use of at the instance of a subject, for this particular purpose." The immediate injury is to the crown; the rest is consequential. The old writ of quo warranto is a civil writ, at the suit of the croimi; it is not a criminal prosecution. It probably dropped with eires : which is the more likely, because the quo warranto was Sec. 4.] EXTRAORDINARY REMEDIES. 797 to be determined in eire. But be that as it may, this was the true old way of inquiring of usurpations upon the crown, by holding^ fairs or markets ; viz. by writs of quo warranto. Then information in the nature of a quo warranto came into use, and supplied their place. See "Quo Warranto," Century Dig. § 28; Decennial and Am. Dig. Key- No. Series § 26. AMES V. KANSAS, 111 U. S. 449, 460, 461, 4 Sup. Ct. 437. 1883. History. Definition. Practice. Criminal or Civil? [A resolution of the legislature of Kansas directed the attorney gen- eral of that state to institute proceedings "in the nature of quo war- ranto against the Kansas Pacific Railroad Co. for an abandonment, etc., of its powers as a corporation, and to institute similar proceedings against the Union Pacifi,o Railway Co. for usurping, holding, etc., the powers, etc., of the Kansas Pacific Railway Co. in the state of Kansas." Under this resolution the attorney general proceeded against these cor- porations in the supreme court of Kansas. The railroad companies filed petitions to remove the proceedings from the state court to the circuit court of the United States. Each case was docketed in the circuit court of the United States, but that court remanded the cases to the state court, and the railroad companies carried the cases to the supreme court of the United States by writ of error. Reversed. Only so much of the opinion as discusses the nature of the remedy by quo warranto, is here inserted. If the proceeding was of a civil nature at law or in equity, it was removable, in this instance, under the acts of congress, otherwise if the proceedings were criminal in their nature.] Waite, C. J. . . . The original common-law writ of quo warranto was a civil writ, at the suit of the crown, and not a crim- inal prosecution. Rex v. Marsden, 3 Burr. 1817. It was in the nature of a writ of right by the king against one who usurped or claimed franchises or liberties to inquire by what right he claimed them (Com. Dig. "Quo Warranto," A), and the iirst process was summons. Id. C. 2. This writ, however, fell into disuse in Eng- land centuries ago, and its place was supplied by an information in the nature of a quo warranto, which, in its origin, was "a crim- inal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him, or seize it for the crown. " 3 Bl. Comm. 263. Long before our revolution, how- ever, it lost its character as a criminal proceeding in everything except form, and was ' ' applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful pos- sessor; the fine being nominal only." 3 Bl. Comm. supra; The King V. Francis, 2 Term R. 484; Bac. Abr. tit. "Information," D; 2 Kyd, Corp. 439. And such, without any special legislation to that effect, has always been its character in many of the states of the Union. Com. v. Browne, 1 Serg. & R. 382 ; People v. Rich- ardson, 4 Cow. 102, note ; State v. Hardie, 1 Ired. 48 ; State Bank V. State, 1 Blackf . 272 ; State v. Lingo, 26 Mo. 498. In some of the states, however, it has been treated as criminal in form, and mat- 798 EXTEAORDINAEY REMEDIES. [Ck. 10. ters of pleading and jurisdiction governed accordingly. Such is the rule in New York, Wisconsin, New Jersey, Arkansas, and Illi- nois, but in all these states it is used as a civil remedy only. Atty. Gen. V. Utica Ins. Co., 2 Johns. Ch. 377 ; People v. Jones, 18 Wend. 601 ; State v. West Wisconsin Ry. Co., 34 Wis. 213 ; State v. Ash- ley, 1 Ark. 279 ; State v. Roe, 2 Dutch. 217. This being the con- dition of the old law, it seems to us clear that the effect of legisla- tion like that in Kansas, as to the mode of proceeding in quo war- ranto caseSj is to relieve the old civil remedy of the burden of the criminal form of proceeding with which it had become incum- bered, and to restore it to its original position as a civil action for the enforcement of a civil right. The right and the remedy are thus brought into harmony, and parties are not driven to the ne- cessity of using the form of a criminal action to determine a civil right. This has been the construction put upon similar laws m other states. State v. McDaniel, 22 Ohio St. 361; Central & G. R. Co. V. Taylor, 5 Colo. 42 ; Com. Bank of Rodney v. State, 4 Sniedes & M. 490, 504. These suits are therefore of a civil na- ture. See "Quo Warranto," Century Dig. § 28; Decennial and Am. Dig. Key- No. Series § 26. REX V. LEIGH, 4 Burrows, 2143, 2145. 1768. Quo Warranto, or Proceedings in the Nature of Quo Warranto, iy the Croion. Burden of Proof. [Information in tlie nature of quo warranto. Twelve issues were taken, and five were withdrawn by the prosecutor. The defendant claimed the office in controversy under two titles, i. e., by prescription and by charter, but he relied, in his plea, upon the prescription only, and that was found against him. There was a motion in arrest of judg- ment on the ground that it appeared upon the whole record that de- fendant's title to the office was good under the charter, and therefore no judgment could be entered against him, even if the jury had found against him on the title claimed by prescription. The other side Insisted that the defendant, having set up title by prescription and having failed to set up the title by the charter, could not now, after verdict, set up any defense growing out of the charter. Motion in arrest of judgment over- ruled.] Lord Mansfield asked if they [the defendant's counsel] could cite any case where judgment had been refused to the crown upon an information in nature of quo warranto, where the defendant failed in the title he had set up. And it seemed acknowledged, that there was none. At least, none were mentioned. Whereupon his lordship proceeded to observe, that in civil cases, if the plaintiff have no cause of action, he cannot have judg- ment. But this manner of proceeding is quite different. For if the defendant has usurped the franchise ivithmit a title, the king must have judgment. The defendant therefore is obliged to show u title; and the king has no need to traverse any thing but the Sec. 4.] ' EXTEAOEDINARY REMEDIES. 799 "title set up. If any one material issue is found for the crown, the crown must have judgment. . . . Mr. Justice Yates proceeded — The defendant in quo warranto is called upon to show his title; to shoiv "quo warranto he claims the franchise." He accordingly shows his title. The crown has only to answer this particular claim. He must at once show a com- plete title. If he fails in it, or in any chain of it, judgment must be given against him. Plere, the defendant has set up a particular title ; this title, upon which he grounds his claim to the franchise, is found against him. Pie cannot now depart from it. Therefore the crown is here entitled to judgment. . . See "Quo Warranto," Century Dig. § 63; Decennial and Am. Dig. Key No. Series § 55. SAUNDERS V. GATLING, 81 N. C. 298. 1879. To Try Title to a Public Offlce, Under the Code Practice. Nature of the Common Law Remedy. Quo Warranto and Mandamus Distinguished. fAction to try the title to a public office. Judgment against the plain- tiff, and he appealed. Affirmed. The action was brought by the plaintiff in his own name and not by the attorney general in the name of the people, upon the relation of the plaintiff. The facts appear in the be- ginning of the opinion.] Ashe, J. This is an action brought by the plaintiff in his own name against the defendant, to determine the question of title to the office of clerk of the superior court for the county of Hertford ; and the court is asked to oust the defendant and have the plaintiff inducted, and give him a judgment for the fees and emoluments of the office. We think the plaintiff has mistaken his remedy, and it is not competent for the court to give him the relief he seeks by this ac- tion. Questions as to the title and possession of offices at common law were determined by the writ of quo warranto, which was the appropriate remedy in such cases. It was originally a high pre- rogative writ issued out of chancery, and was used by the crown of Great Britain unjustly and oppressively upon its subjects, un- til it was modified and stripped of many of its harsher features by what were called the statutes quo warranto ; and then, after the justices in eyre were displaced by the judges of the superior courts, it fell into disuse, and the information in nature of a writ of quo warranto obtained in its stead, and has ever since been the remedy in England and in this country by which the title to an office can be established by judicial determination. It is the only appropriate and efficacious remedy, sanctioned by an overwhelm- ing current of authority both in this state and in England. High on Ex. Leg. Rem. sees. 49, 53, 77; Ex parte Daughtry, 28 N. C. 155; State v. Hardie, 23 N. C. 42. But the original writ of quo warranto, as well as proceedings by information in the nature of quo warranto, has been abolished, C. C. P. s. 362 ; but it is therein 800 BXTBAORDINAEY REMEDIES. [Ch. 10. provided that the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of chapter 2, tit. 15. "What are these provisions? Section 366 provides "that an ac- tion may be brought by the attorney general in the name of the people of the state upon his own information, or upon the com- plaint of any private party against parties offending in the fol- lowing eases: l.When any person shall usurp, intrude into or un- lawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state ; or, 2. When any public officer, civil or military, shall have done or suffered an act which, by the pro- visions of law. shall make a forfeiture of his oiSce ; or 3. When any association or number of persons shall act within this state as a corporation without being duly incorporated." By section 368, amended by the act of 1874r-75, ch. 76, it is provided that when an action shall be brought by the attorney general on the relation or information of a person having an interest in the question, the name of such person shall be joined with the state as nlaintifl, and in every such case the attorney general shall require, as a condi- tion for bringing such action, that satisfactory security shall be given to indemnify the state against costs, etc. And section 369 provides how. at the instance of the attorney general, the defend- ant may be arrested and held to bail. So that, although the proceeding by information in nature of the writ of quo warranto has been abolished, it will be seen from these sections of the Code that the remedy to be pursued, when- ever the controversy is as to the validity of an election or the right to hold a public office, is by an action in the nature of a writ of quo warranto. It is not merely an action to redress the grievance of a private person ivJio claims a right to the office, hut the public has an interest in the question which the legislature by these provisions of the Code seems to have considered paramount to that of the private rights of the person aggrieved: Hence, the requirement that such action must be brought by the attorney gen- eral in the name of the people of the state, and upon his own in- formation without the relation of a private person when the per- son aggrieved does not see proper to assert his right; and when the claimant does seek redress, he must be joined in the action, but still it must be brought by the attorney general in the name of the people. Such is the construction which has been given to these sections of the Code by numerous decisions of this court. Patterson v. Hubbs, 65 N. C. 119; Tuck v. Hunt, 73" N. C. 24; People V. Hilliard, 72 N. C. 169 ; People v. McKee, 68 N. C. 429 ; Brown v. Turner, 70 N. C. 93. One of the headnotes to this last case is calculated to mislead. It reads, "Any person having a right to an olfice can, in his own name, bring an action for the purpose of testing his right as against one claiming adversely;"' but in looking into the ease it will be found that the court did not entertain any such proposition, but just the reverse. That was an Sec. 4.] EXTBAOEDINARY REMEDIES. 801 application for a mandamus, where the jmrty aggrieved may bring the action in Ms own name, and the court held that where the right or title to an office is put in issue, mandamus is not the proper remedy, but the appropriate remedy is by an action in the nature of a quo 'warranto; and Mr. Justice Bynum, who delivered the opinion in the case, says that "no stress is laid upon the fact that the action is not on the relation oi the attorney general, for we are of opinion that under the liberal provisions of the Code of Civil Procedure, any party having a right can sue in his own name in all eases, except when otherwise expressly provided. In modem practice, mandamus is not a prerogative writ, but an or- dinary process in cases to which it is applicable, and every one is entitled to it when it is the appropriate process for asserting the right claimed." In that ease, the action being an application for mandamus, the action was properly brought, so far as the parties thereto were concerned, by the plaintiff in his own name; but in our case it is otherwise expressly provided — it falls within the exception mentioned by Mr. Justice Bynum, and the provisions of the Code in that respect should have been followed. In the view we have taken of this ease, we deem it unnecessary to consider it upon its merits, but dismiss the action and leave the plaintiff to resort to his appropriate remedy. The judgment of the court below is affirmed. See notes to La Grange v. State Treasurer, 24 Mich. 468, inserted in sec. 3, ante. See "Quo Warranto," Century Dig. § 13; Decennial and Am. Dig. Key No. Series § 11. HANKINS V. NEWELL, 75 N. J. L. 26, 66 Atl. 929. 1907. Quo Warranto for Usurping Office in a Private Corporation. [Proceeding in the name of the state of New Jersey upon the relation ot Hankins et al. against the defendants who held offices in a cemetery association which was a private corporation. The proceeding was a peti- tion for a writ of quo warranto. Writ granted.] Garrison, J. A petition for a writ of quo warranto was filed and a rule thereon made requiring the respondents to show cause by what authority they claimed to have, use, and enjoy the office and privileges of trustees of the Bordentown Cemetery Associa- tion; the petitioners claiming to have been elected to such office of tinistees and that the defendants have usurped the said office. The respondents contend in limine that the writ of quo war- ranto cannot go to inquire into an alleged usurpation of an office in a private corporation. Such is the English rule. Shortt on Quo "War. p. 129. The American rule differs in this respect from the English. Mr. High, in his work on Quo Warranto, says: "The propriety of an information in the nature of a quo vv'arranto as a remedy for an unlawful usurpation of an office in a merely private corporation Remedies — 51. 802 EXTRAORDINARY REMEDIES. [CJl. 10. was formerly involved in some doubt, but the question may now be regarded as settled in this country. This species of remedy being generally employed in England in cases of public or munici- pal corporations, the English precedents are inapplicable to this particular question and its solution must be referred to the more general principles underlying the jurisdiction in question. Tested by these principles, an intrusion into an office of a merely private corporation may in this country be corrected by information with the same propriety as in cases of public or municipal corporations, since there is in both cases an unfounded claim to the exercise of a corporate franchise amounting to a usurpation of the privilege granted by the state." High on Extraord. Leg. Rem. § 653. As early as the year 1827 the writ of quo warranto was so used in this court. State v. Crowell, 9 N. J. Law, 390. The provisions of the forty-second section of the corporation act for a summary review of corporate elections have no bearing .upon the present question for the reason that such provisions when taken in connection with the other requirements of the act are confined to elections in corporations having stock. In re Election of Cedar Grove Cemetery Company, 61 N. J. Law, 422, 39 Atl. 1024. The principal case holds directly contrary to the ruling in Eliason v. Coleman, 86 N. C. 235. See Pell's Revlsal, sec. 827 et seq. and note that the statute construed in 86 N. C. 235, is the same as the present statute as to quo warranto for offices held in a private corporation. For man- damus to induct one into office in a private association or corporation, see Rex v. Barker, ante, section 3. See "Quo Warranto," Century Dig. § 21; Decennial and Am. Dig. Key No. Series § 20. THE STATE v. THE PATERSON AND HAMBURG TURNPIKE CO., 21 N. J. L. 9. 1847. Quo Warranto Against Usurpers of Corporate Franchises. Private Cor- porations. [Application by private individuals for leave to file an information in the nature of a quo warranto in the name of the attorney general, upon the relation of Sydney Ford et als., against the defendant corpora- tion, for an alleged violation of its charter "and for the purpose of seiz- ing its privileges into the hands of the state." The defendant was a turnpike company, and the casus belli was its inefficiency in construct- ing and maintaining its turnpike. Applcation denied.] Carpenter, J. This is a private application in behalf of re- lators, and not a proceeding instituted by the attorney general. Private individuals ask the permission of the court to use the name of the state and the process of the law. If the attorney gen- eral on behalf of the state was about to institute this proceeding, he need not ask the perrqission of this court for that purpose. The institution of proceedings of this character at the instance of relators, under the leave of the court, is authorized by statute, and only by statute. No instance, said Lord Mansfield, in R. v. Mars- Sec. 4.] ' EXTBAORDINAEV REMEDIES. 803 den, ] W. 131. 580, has been produced of information in nature of quo warranto before the statute of 9 Anne, unless filed by the at- torney general. The courts at common law and in cases not within the statute, have no authority to direct such information and leave the matter to the discretion of the attorney general. Ibbol- son's Case, cas. temp. Hardw. 261; Sir Wm. Lowther's Case, 2 Ld. Raym. 1409. Our act (Rev. L. 206) is copied substantially from the statute of 9 Anne, c. 20. The English statute provides for the case when any persons shall usurp etc., any corporate office or franchise; the language of our statute is more extensive, and applies to the in- trusion into, or unlawful holding of any office or franchise within this state. In regard to the present question, we apprehend the same construction applies to both statutes. An information for the purpose of dissolving a corporation, or seizing its franchises, cannot be prosecuted in the name of the state, at the relation of private persons, though leave be asked of the court. Such pro- ceeding can be instituted only by the attorney general on the part of the state, either merely ex officio, or under special direction from the proper authority . The statute of 9 Anne extends only to individuals usurping offices or franchises in a corporation, and not to the corporation as a bodv. Com. v. Union Ins. Co., 5 Mass. 230 ; Com. V. Fowler, 10 Mass. 295 ; R. v. Carmarthen, 2 Bur. 869, 1 W. Bl. 187; R. V. Ogden, 10 B. & C. 230; R. v. White, 5 Ad. & El. 613 ; Bac. Abr. tit. "Information," D. This distinction is well settled, and is a safe and proper rule. The state, said C. J. Par- sons in a case cited, may waive any breaches of any condition ex- press or implied, on which the corporation was created; and the court cannot (or ought not) to give judgment for the seizing of the franchise of any corporation unless the state itself be a party in interest in the suit, and thus assents to the judgment. Who can bring quo warranto against private corporation? 1 L. R. A. (N. S.) 826; for when such proceeding Is barred by laches, see 14 lb. 336, and note. See Pell's Revisal, sec. 1198, and notes, for the practice in North Carolina in such cases. See "Quo Warranto," Century Dig. § 41; Decennial and Am. Dig. Key No. Series § 34. CAIN V. BROWN, 111 Mich. 657, 658, 661, 7 N. W. 337. 1897. Quo Warranto to Dissolve a Municipal Corporation. [Attempt to dissolve a municipal corporation by quo warranto. The nature of the proceeding is set out in the beginning of the opinion. The lower court gave judgment against the defendant. Reversed. The corporation attacked was a village duly chartered by the legisla- ture. The plaintiffs ground of attack was an alleged repeal of the charter in 1891 by popular vote. An act of the legislature permitted the inhabitants of the village to vacate its charter by popular vote. There was a vote taken but the respondent. Brown, denied that the vote was legally taken, because of irregularities set out In his answer. The plain- tiff failed to show a compliance with the statute authorizing the dis- solution by popular vote.] 804 EXTBAOEDINARY REMEDIES. [Ch. 10. Montgomery, J. This proceeding originated in the circuit court of Lapeer county, where an application was made by the re- lators for a writ of mandamus, directed to the respondent, re- quiring him to file an information in the nature of a quo warranto against David Donaldson and other officers of the village of Attica, in Lapeer county. The writ of mandamus was directed to issue by the circuit judge, and that order is brought before us for re- view on certiorari. ... In Dill. Mun. Corp. § 112, the rule is laid down that : ' ' Unless otherwise specially provided by the legis- lature, the nature and constitution of our municipal corporations, as well as the purposes they are created to subserve, are such that they can only be dissolved by the consent of the legislature. They may become inert or dormant, or their functions may be sus- pended, for want of ofBcers or of inhabitants; but dissolved, when created by an act of the legislature, and once in existence, they cannot be, by reason of any default or abuse of the powers con- ferred, either on the part of the officers or inhabitants of the in- corporated place. As they can exist only by legislative sanction, so they cannot be dissolved or cease to exist except by legislative consent or pursuant to legislative provision." This, we think, is a correct statement of the law upon the subject, and it follows from this that the relators, before invoking the aid of the court, should be prepared to show that the village of Attica was dissolved in 1891, by action taken, according with the provisions of the statute. . See 28 Cyc. 252; 1 L. R. A. (N. S.) 826, 21 lb. 685, and notes. For the history of the celebrated quo warranto proceedings against the city of London during the reign of Charles 2, see Camp. Lives C. J's, vol. 2, pp. 321-326. For the remedy by quo warranto in North Carolina, as regulated by statute, see Pell's Revisal, sees. 826-845, and notes. See "Quo Warranto," Century Dig. §§ 9, 63; Decennial and Am. Dig. Key No. Series §§ 8, 55. Sec. 5. Injunction. THE ROGERS LOCOMOTIVE AND MACHINE WORKS v. THE ERIE RWY. CO., 20 N. j. Eq. 379. 1869. Nature of the Remedy hy Injunction. In What Cases Injunction Will Issue. Different Kinds of Injunction. Mandatory Injunction. [Motion in the court of chancery for a preliminary injunction. Cause heard upon the bill and an affidavit on behalf of the defendants, replying to the allegation in the bill that the defendant corporation was insolvent. The preliminary injunction was ordered in so far as to restrain defend- ants from agreeing together or doing anything else to prevent or hinder the transportation of plaintiff's locomotives; but the court refused to grant a prelimina/ry mandatory injunction requiring defendants to re- store certain chattels to the plaintiff and to transport plaintiff's loco- motives at the rates prescribed by law. The facts disclosed by the bill were: That the Erie Railway Co. was a common carrier; that it refused to transport plaintiff's locomotives In flagrant violation of law; that such refusal was the outcome of a corrupt combination between the directors of the defendant corporation and Sec. 5.] EXTRAORDINARY REMEDIES. 805 others; that the plaintiff had two trucks used in handling its locomo- tives, which trucks were put into the possession of the defendant rail- way company for the purpose of transporting plaintiff's locomotives, and that, being so in possession, the defendant railway company carried the trucks into another state and refused to return them to plaintiff; that such conduct was also the outcome of a fraudulent combination among the defendants with intent to prevent the transportation of plaintifC's locomotives; that new trucks could not be obtained by plaintiff "under several months." There was a charge, also, that the defendant railway company was insolvent, hut that charge was rebutted — the court finds as a fact that the company was not insolvent nor was it likely to be- come so.] Zabriskie, Chancellor. . . . Although the injury is .proved, and the subject ihatter is such that a court of equity will not re- fuse relief on the ground that there is adequate relief at law, the question remains, whether the injunction here applied for can be granted, or any part of it. There are injuries which this court cannot redress, although there may be no satisfactory remedy at law, and those which this court can redress, for which no prelim- inary injunction can issue. The two chief objects for which the injunction is asked are to compel the railway company to return to the complainant its trucks, and to compel it to transport the locomotives of the com- plainant from Paterson to Long Dock at the legal rates of freight. These are to compel the company to act, not to refrain from act- ing. And the act commanded is the whole duty of the company, and its performance is the whole right of the complainant. It is not the case of a prohibition of keeping up a structure or main- taining some material object, the erection and continuance of which is the act that deprives the complainant of his right, and the destruction or removal of which would restore the enjoyment of it. It is contended by the defendants that a mandatory injunction, or one which commands the defendant to do some positive act, will not be ordered, except upon final hearing, and then only to exe- cute the decree or judgment of the court, and never on a prelim- inary or interlocutory motion. Or that, if it ever does so issue, it is only in cases of obstruction to easements or rights of like na- ture, in which a structure erected and kept as the means of pre- venting such enjoyment will be ordered to be removed, as part of the means of restraining the defendant from interrupting the en- joyment of the right. Although there is some conflict in the au- thorities and decisions, I am of opinion, after examining into them, that this position, with the limitation, is the established doc- trine of the courts of equity, and' that it is a proper and discreet limitation of the use of the preliminary injunction, as well as sus- tained by the weight of authority. Justice Story, in 2 Eq. Jur. sec. 861, says: "A writ of injunc- tion may be described to be a judicial process, whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ. The most 806 EXTRAORDINARY REMEDIES. [Gil. 10. common form of injunction is that ^hich operates as a restraint upon the party in the exercise of his real or supposed rights, and is sometimes called the remedial writ of injunction. The other form, commanding an act to be done, is sometimes called the ju- dicial writ, because it issues after a decree, and is in the nature of an execution to enforce the same." ]\Ir. Eden begins his treatise on injunctions by saying "An injunction is a writ issuing by the order and under the seal of a court of equity, and is of two kinds. The one is the writ remedial; for, in the endless variety of cases in which a plaintiff is entitled to equitable relief, if that relief consists in restraining the commission or continuance of some act of the defendant, a court of equity administers it by means of the writ of injunction. The other species of injunction is called the judicial writ, and issues subsequent to a decree, and is properly described as being in the nature of an execution. ' ' In Drewry on Injunctions, p. 260, it is laid down: "It seems settled that equity has not jurisdiction to compel, on motion, the performance of any substantive act." In 3 Dan. Chan. Prac. 1767, it is said: "It is to be observed that the court will not, by injunction granted upon interlocutory application, direct the defendant to perform an act, but might, upon motion, order the defendant to pull down a build- ing which was clearly a nuisance to the plaintiff." Lord Hardwicke, in an anonymous case in 1 Ves. Jun. 140, ro- strained the further digging of a ditch, but refused, on motion before answer, to order the part dug to be filled up. Chancellor Vroom, in the Atty. Gen. v. The New Jersey Railroad Co., 2 Green's Ch. 141, says: "The injunction is a preventive remedy. It interposes between the complainant and the injury he fears or seeks to avoid. If the injury be already done, the writ can have no operation, for it cannot be applied correctively, so as to remove it. " In that case, the injury done was driving piles for a bridge, so as to obstruct navigation; a mandatory injunction to remove them would have remedied the whole evil. In Hooper v. Broder- ick, 11 Sim. 47, a preliminary injunction to restrain a tenant from discontinuing to keep an inn was dissolved, on the ground that it was mandatory — the same as if he was commanded to keep an inn. In Blakeman v. Glamorganshire Canal Nav. Co., 1 Myl. & Keene, 154, Lord Brougham, after a review of the cases (p. 183) and quoting with approbation what Lord Hardwicke said in Ry- der V. Bentham, that "he had never known an order to pull down, on motion, and but rarely by decree," refused so much of the in- junction prayed for as directed the defendant, Powell, to fill up the collateral pond. The cases of The Bast India Co. v. Vincent, 2 Atk. 83 ; Spencer v. London and Birmingham Railway Co., 8 Sim. 193; and of Durell v. Pritchard, 1 Ch. App. (E. L. R.) 244, are to the same effect. And in the last case. Lord Romilly, M. R., held that the court, upon final hearing, could not issue a mandatory injunction, directing a wall to be taken down, yet the Lords Justices, on appeal, held that it had the power, hut that in Sec. 5.] EXTRAORDINARY REMEDIES. 807 the case before them it should not be exercised, and dismissed the appeal. There are cases in which mandatory injunctions have been is- sued on motion, but they are all, or nearly all, cases in which some erection placed and maintained by the defendant to effect the in- jury complained of was ordered to be removed, or its maintenance forbidden, on the ground that the defendant effected the act he was restrained from doing, by continuing such erection. In Rob- inson V. Lord Byron, 1 Bro. C. C. 588, which is referred to as the leading case for mandatory injunction, Lord Thurlow ordered an injunction to restrain defendant from using his dams and other erections, so as to prevent the water from flowing to the complain- ant 's mill in such quantities as it had ordinarily done before April 4th, 1785. The effect of this may have been to compel the removal of the part erected after 1785. But as the case states the injury complained of to be that Lord Byron so used his dam and gates as to let the water flow irregularlJ^ to the complainant's injury, I do not see in the report any direction, express or implied, to take down anything, or to do any act whatever. In Lane v. Newdigate, 10 Ves. 192, the object of the injunction was to compel the restor- ing of a stop-gate which was wrongfully removed. Lord Bldon would not order it to be restored, but restrained the preventing the use of the water by complainant by the removal of a stop-gate, which was equivalent to an order to restore it, and was so in- tended. In Ranken v. Huskisson, -i Sim. 13, the court restrained the defendant from permitting the erection to remain, this was equivalent to an order to remove it. But it is like the others ; sim- ply removing that by which the defendant continued the nuisance to be restrained. In Mexborough v. Bower, 1 Beav. 127, Lord Langdale ordered an injunction to restrain permitting the com- munication complained of (by which complainant's mine was flooded) to remain open. The injunction M'as to prevent the flow- ing of the mine, by restraining or removing the means by which the defendant continued to do it. In the North of England Railway Co. v. The Clarence Railway Co., 1 Coll. 507, the injunction prayed for was against maintain- ing a wall, and after the rights of the parties had been referred to, and settled in the court of the Exchequer, V. C. Bruce hesitated to grant the injunction, although he held, p. 521, that mandatory injunctions might be granted; yet he referred the case to Lord Chancellor Lyndhurst, who, it is stated, granted the injunction in nearly the terms of the prayer ; but whether it included this man- datory part does not distinctly appear. The case established the nght of the complainant to build a bridge over the railway of the defendant, and to rest the supports of the scaffolding on the soil ; and the mandatory prayer was that defendants should remove a wall placed on their grounds to hinder it. In Greatrex v. Great- rex, 1 De Gex & Sm. 692, the injunction was against preventing the plaintiffs from having access to the books of the firm, and 808 EXTEAOEDINAEY REMEDIES. [C7l. 10. against removing them from, or keeping them at any other place than the place of business of the partnership, as the defendant had removed the books ; this was equivalent to an order to restore them, yet it did not command any act to be done. In Heraey v. Smith, 1 Kay & J. 389, the injury enjoined was covering with tiles the chimneys ,from the butler's pantry of the complainant; Lord Hatherly (the present Lord Chancellor, then Vice Chancellor, Sir W. P. Wood) , on the authority of Robinson v. Lord Byron, granted an injunction, the effect, of which was, and was intended to be, to compel the defendant to remove the tiles ; but he declined to adopt the mandatory form, but restrained the defendant from doing any act to prevent the smoke from arising. The substance of the judg- ment is grounded on the power of the court to remove an erection made by the defendant to effect the injury to be redressed, when that erection is the means by which the defendant continues to in- flict the injuries from which the court intended to restrain; and the form of it is an acknowledgment of the general principle that an interlocutory injunction should not command the doing of any positive act. A number of authorities and cases were cited on the argument to show that courts of equity will, in certain cases, decree the res- titution of particular chattels. But these are all cases where it was so ordered upon final hearing. There is no case of any inter- locutory injunction being granted or even applied for, for such purpose. It would be a simple and easy substitute for the action of replevin. And there is nothing in this case to warrant such order, even upon final decree. The value of these trucks can be fully recovered at law, and as to the use of them in the meantime, new ones could be built sooner than a suit in equity could be brought to final hearing. I feel, therefore, constrained to refuse the injunction so far as these mandatory prayers are concerned; as to so much of the prayer as asks to restrain James Pisk, Jim., and the other defend- ants named in it, from entering into any agreement, or doing any- thing to prevent or hinder the Erie Railway Company transport- ing the complainant's locomotives, I think the injunction ought to be granted. They are conspiring with the Erie Railway Company to injure the complainants in a way for which the redress at law is not adequate, and therefore should be enjoined from doing any acts to that end. I do not intend to intimate any opinion upon the question whether this court has power on the final hearing, to give the complainants the relief they seek, by compelling the Erie Railway Company to transport their locomotives at the es- tablished fares. "It has been said in some American decisions that a mandatory in- terlocutory injunction will never be granted. This doctrine is not only opposed to the overwhelming weight of authority, but is contrary to the principle which regulates the administration of preventive relief, and is manifestly absurd." 4 Pom. Eq. Juris. § 1359, note 1; and see also 22 Cyc. 742, 743. See "Injunction," Century Dig. § 302; Decennial and Am Dig. Key No. Series § 132. Sec. 5.] EXTRAORDINARY REMEDIES. 809 HART V. LEONARD, 42 N. J. Eq. 416, 7 Atl. 865. 1886. General Principles and Rules Governing Injunctions. Nine Gases in Which Injunctions Issue. [Bill in equity to restrain the obstruction of a private way. The vice chancellor advised that a perpetual injunction be decreed, and the de- fendant appealed. Reversed. The facts appear in the beginning of the opinion.] Dixon, J. The bill in this case avers that the complainant is the owner of a wood and pasture lot containing 3.37 acres of land, and that he and his predecessors in title have, by adverse user for over twenty years, acquired a right of way across the land of the defendant from a certain public road to said lot ; that the de- fendant now obstructs said way; and the bill therefore prays a decree that the complainant is entitled to the way, and for a man- datory injunction commanding the defendant to remove the ob- struction, and allow the complainant to pass through at his pleas- ure. The answer denies the complainant's right. The complainant 's testimony tends to show user for over twenty years. The defendant's testimony tends to show that the user was not adverse, but was by his express permission, as an act of neigh- borly accommodation. The vice-chancellor advised a decree and injunction according to the prayer of the bill. Hence this ap- peal. Prom the foregoing statement it appears that the claim set up is to a purely legal interest in land, resting upon a purely legal basis. Before attempting to determine the validity of the claim, it is proper to consider whether the question presented comes within the cognizance of a court of equity. No doubt many cases arise in which courts of equity may, by decree and injunction, protect and enforce legal rights in real estate. So far as they are exemplified in our chancery practice, these cases can, I think, be classified under the following heads : (1) Cases where the legal right has been established in a suit at law, and the bill in equity is filed to ascertain the extent of the right, and enforce or protect it in a manner not attainable by le- gal procedure. Quackenbush v. Van Riper, 3 N. J. Eq. 350. (2) Cases where the legal right is admitted, and the object of the bill is the same as in the class just mentioned. Carlisle v. Cooper, 21 N. J. Eq. 576 ; Shivers v. Shivers, 32 N. J. Eq. 578, 35 N. J. Eq. 562; Johnson v. Hyde, 33 N. J. Eq. 632. (3) Cases where the legal right, though formally disputed, i.i yet clear, on facts which are not denied, and legal rules which are well settled, and the object of the bill is as before stated. Shreve V. Voorhees, 3 N. J. Eq. 25 ; Hubne v. Shreve, 4 N. J. Eq. 116 ; Morris C. & B. Co. v. Establishing Society, etc., 5 N. J. Eq. 203; Earl V De Hart, 12 N. J. Eq. 281; Dodd v. Plavell, 17 N. J. Eq. 255; Johnson v. Jaqui, 25 N. J. Eq. 410. 27 N. J. Eq. 526; Dem arest v. Hardham, 34 N. J. Eq. 469; Higgins v. Flemington W. Co., 36 N. J. Eq. 538. 810 EXTEAORDINAEY REMEDIES. [Cll. 10. (4) Cases where one attempts to appropriate the land of an- other, under color of statutory authority, without complying with the legal conditions precedent. Ross v. Elizabeth, T. & S. R. Co., 2 N. J. Eq. 422 ; Browning v. Camden & W., etc., Co., 4 X. J. Eq. 47 ; Higbee v. Camden & A. R. Co., 19 N. J. Eq. 276 ; Polley v. Passaic, 26 N. J. Eq. 216; Morris C. & B. Co. v. Jersey City. Id. 294. [See ch. 3, § 15, ante.] (5) Cases where the object of the bill is to stay waste. Capner V. Plemington Min. Co., 3 N. J. Eq. 467; Bank of Chenango v. Cox, 26 N. J. Eq. 452. [See ch. 3, § 9, ante.] (6) Cases where the object of the bill is to prevent an injury which will be destructive of the inheritance, or which equity deems irreparable ; i. e., one for which the damages that may be recov- ered according to legal rules do not afford adequate compensation. Morris C. & B. Co. v. Jersey City, 11 N. J. Eq. 13 ; Pranklinite Co. V. Zinc Co., 13 X. J. Eq. 215; Zinc Co. v. Pranklinite Co., Id. 322; Zinc Co. V. Pranklinite Co.. 15 N. J.' Eq. 418; Southmayd v. Mc- Laughlin, 24 X. J. Eq. 181 ; Jlanko v. Chambersburgh, 25 X. J. Eq. 168 ; Johnson v. Hyde, Id. 454; Thomas Iron Co. v. Allentown Min. Co., 28 X. J. Eq. 77; Pulton v. Greacen, 36 N. J. Eq. 2Hi- Lord V. Carbon I. M. Co., 38 N. J. Eq. 452. [See ch. 3, § 14. ante.] (7) Cases w^here the object of the bill is to protect one's dwell- ing from injuries which render its occupancy insecure or uncom- fortable. Brakely v. Sharp, 10 N. J. Eq. 206 ; Holsman v. Boiling Spring B. Co., 14 N. J. Eq. 335 ; Ross v. Butler, 19 N. J. Eq. 294 ; De Veney v. Gallagher, 20 N. J. Eq. 33; Cleveland v. Citizens Gas-light Co., Id. 201 ; Babeoek v. New Jersey Stockyard Co.. Id 296; Attorney General v. Steward, Id. 415,' 21 N.'j. Eq. 340 Meigs V. Lister, 23 N. J. Eq, 199 ; De Luze v. Bradbury, 25 N. J Eq. 79; Kana v. Bolton, 36 N. J. Eq. 21; Williams v. Osborne, 40 N. J. Eq. 235 ; Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. Rep. 432; Lenning v. Ocean Citv Ass'n, 41 N. J. Eq. 606, 7 Atl. Rep. 491. [See ch. 3, § 11, ante.] (8) Cases where the right to be protected or enforced grows out of the expressed or implied terms of a contract, so that the court can entertain jurisdiction by virtue of its power to compel specific performance. Robeson v. Pittenger, 2 N. J. Eq. 57 ; Arm- strong V. Potts, 23 N. J. Eq. 92; Jaqui v. Johnson, 26 X. J. Eq. 321; Shimer v. Morris C. & B. Co.. 27 N. J. Eq. 364; Iszard v. Mays' Landing W. P. Co., 31 N. J. Eq. 511 ; Pope v. Bell, 35 X. J. Eq. 1 ; Sutphen v. Therkelson, 38 X. J. Eq. 318 ; Gawtr\^ v. Leland, 40 N. J. Eq. 323 ; Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. Rep. 491. [See ch. 8. § 9, ante.] (9) Cases where the object of the bill is to prevent a multi- plicity of suits, otherwise rendered necessary by the fact that many persons are interesed'in the controversy. Britton's Adm'rs V. Hill, 27 X. J. Eq. 389. [See § 6, post.] Outside of these classes there is no jurisdiction in a court of equity over the mere invasion of mere private legal rights in land. The appropriate remedy is by suit at law. Sec. 5.] EXTRAORDINARY REMEDIES. 811 The ease in hand does not come Avithin any of these classes. Tt bears no trace of resemblance to any except those of the third or those of the sixth class. But the third class does not include it, because the evidence shows a substantial dispute over the facts of adverse user, which the defendant is entitled to have settled by the verdict of a jury ; and the sixth class does not cover it, because the temporary obstruction of a way to a small wood and pasture lot can be fully paid for by the damages recoverable according to legal rules. The decree below should be reversed, and the bill should be dis- missed. See "Injunction," Century Dig. § 77; Decennial and Am. Dig. Key No. Series § 35. JARMAN V, SAUNDERS, 64 N. C. 367, 369-371. 1870. Common Injunction and Special Injunction Distinguished. How It Is Under the Code Practice. [Motion to vacate an injunction. Motion allowed. Appeal by plain- tiff. Reversed. The complaint alleged that plaintiff was sued by the defendant on a note; that plaintiff had a good defense but failed to plead it because the defendant assured him that he would not take judgment; that defendant did take judgment against the plaintiff in violation of such agreement; that the defendant had sued out execution against the plaintiff. The relief asked was, inter alia, a perpetual injunction against proceeding on the execution. The answer positively denied the alleged agreement.] EoDMAN, J. . . How is this equity of the plaintiff affected by the answer which positively denies the agreement upon which it is founded? The distinction between what used to be called a common injunction, and a special injunction, is stated in Heilig v. Stokes, 63 N. C. 612, on the authority of the cases there referred to. The former is said to be when a defendant sets up an eq- uitable defense to the action at law, which by the constitution of the law court, he could not then avail himself of. If an injunction was granted on a bill setting up such an equity, upon the coming in of an answer denying the facts constituting the equity, the in- junction was dissolved of course, unless some special resison was alleged for a continuance of it. A special injunction was founded, not on an equity existing in the controversy at law between the parties, but on something collateral to it ; as, for example, the ne- cessity of protecting the property in dispute, pending the litiga- tion. The injunction to which the plaintiff in this case is entitled, is evidently of the latter sort, and will not be dissolved merely on the defendant's denial, if, in the opinion of the court, it appears reasonably necessary to protect the plaintiff's right until the con- troversy between him and the defendant can be determined. Here it seems to us that there are matters in controversy between the parties, and that the present plaintiff is entitled to make his defense to the original action, and consequently to have the pres- 812 EXTRAORDINARY REMEDIES. [Cli. 10. ent execution restrained. It may be said that under the defini- tion of a common injunction above given, it is difficult to conceive how, now when legal and equitable demands are tried in the same court and in the same form of action, and when every equitable defense can be made in the original action, a case for common in- junction can ever arise. There is another observation which it may be well enough to make. Under the former system it was settled doctrine that a court of law could not set aside its regular judgment at a subse- quent term. If the enforcement of the judgment became ineq- uitable for any reason which a court of equity could take notice of, it would be enjoined. Now that the same court exercises the jurisdiction both of a court of law and of a court of equity, and that without any difference of form founded on the difference be- tween law and equity, it would seem to follow that the rule al- luded to no longer exists, to the extent of prohibiting a superior court from setting aside its judgment at a subsequent term, for any sufficient cause which could have been, and, by accident or fraud, was not, pleaded in bar of the judgment, and that the proper way to apply for such relief is by motion, supported by affidavits, in the original cause. Such we consider this to be. A motion may be put in the form of a petition ; indeed, such is the proper form. 3 Dan. Ch. Pr. 1787-1801. In fact, as is there stated, the difference is in form only, and not in substance or effect ; the petition being in writing, and the motion not. 3 Dan. Ch. Pr, 1781. Of course we have no opinion on the mer- its of the original controversy between the parties. The order helow is reversed. . . . [The court ordered the judgment in controversy to be set aside upon plaintiff's giving bond with sufficient sureties to abide and perform the judgment, should another be rendered. Upon giving such bond, the plaintiff was to be allowed to de- fend the action. The defendant in this action was enjoined from proceeding further under his execution, until allowed so to do by the superior court.] The distinction between common and special injunctions was abolished in England by 15 and 16 Vict. c. 86, sec. 58. See Dan. Ch. Pr. p. 164, note 1. Injunctions are further classified as provisional (also called preliminary or interlocutory) and perpetual (also called final). Fos- ter's Fed. Pr. § 226. For further explanation of the distinction between common and special injunctions, see lb. § 227. See "Judgment," Cen- tury Dig. § 825; Decennial and Am. Dig. Key No. Series § 436. ATTORNEY GENERAL ET AL. v. CITY OF PATERSON, 9 N. J. Eq. 624, 625, 628. 1854. Interlocutory or Preliminary Injunctions. [The attorney general, on the relation of the board of freeholders of Bergen, the inhabitants of Saddle River township, J. S. Van Riper, and others, filed a bill against the city of Paterson, seeking to enjoin the city rfficials from erecting a poor-house and a work-house upon a certain parcel of land, upon the ground that a nuisance would thereby be ere- ^ec. 5.] EXTRAORDINARY REMEDIES. 813 ated, etc. The answer admitted the intent to use the land for the pur- pose alleged, but denied that a nuisance would be thereby created, and claimed a charter right to proceed with the acts complained of. The chancellor refused to order an injunction, but gave leave to the plain- tiffs to renew their application after an indictment for nuisance, pend- ing against defendants, was tried, or at the final hearing of this cause. Affirmed.] Williamson, Chancellor. I do not feel myself at liberty to grant a preliminary injunction in this case. There are important principles of law, as well as important facts, involved in the issue. The object of a preliminary injunction is to prevent some threat- ening, irreparable mischief, which should be averted until oppor- tunity is afforded for a full and deliberate investigation of the case. The defendants have purchased the farm, and removed the paupers, and have nearly completed an expensive building on the premises. To interrupt the progress of the defendants in complet- ing their building, can be of no advantage to the complainants; but such interference might greatly injure the defendants, in a pecuniary point of view, by interfering with their contract for buildings, and in other respects. . . . Green, C. J. . . . Several important questions of law and fact are involved in the controversy, and have been ably discussed upon the argument, viz. : "Whether a city or town may establish a poor-house without its own territorial limits; whether a poor- house, established in a populous neighborhood, be in itself a nui- sance ; whether this particular poor-house is so conducted as to be a nuisance. The chancellor decides neither of these questions. He simply declines to interfere by a temporary injunction. He intimates, indeed, that the questions of law and of fact should be settled in a court of law, before the allowance of an injunction. But his de- cAsi-on is simply that he will not grant a temporary injunction be- fore the final hearing of the cause. The granting or refusal of the temporary injunction, during the pendency of the cause, was a matter of discretion with the chancellor. It concluded no right of the parties, or of either of them. The order is in no sense a final order. Costs are not adjudged. It is not an order from which an appeal will properly lie. Garr v. Hill, 1 Halst. Ch. 639 ; Trustees of Huntington v. Nicoll, 3 John. 566. Clearly no irremediable in- jury can result from a denial of the injunction, nor can the subject matter in controversy be withdrawn from the jurisdiction of the court. . . Appeal dismissed. See "Injunction," Century Dig. §§ 307-309; Decennial and Am. Dig. Key No. Series § 137. COBB V. CLEGG, 137 N. C. 153, 158, 159, 49 S. E. 80. 1904. Common and Special Injunction, Under the Code Practice. Rules as to Granting and Dissolving Restraining Orders or Interlocutory In- junctions. [Plaintiff sued to restrain the defendant from using a room in a hotel as a cafe, in violation of an alleged covenant by the defendant not to da 814 EXTBAOHDINARY REMEDIES. [Ck. 10. SO. A restraining order was issued and upon its return it was contin- ued to tlie hearing. Defendant appealed. Affirmed. Only so much of the opinion as distinguishes between common and special injunctions, is here inserted.] Walker, J. . . . We have stated the contentions of the re- spective parties for the purpose of showing the impracticability of ■deciding upon the ultimate merits of the controversy in this, the preliminary stage of the case. This court should, when feasible, always avoid expressing an opinion which will anticipate the de- cision of the case at the final hearing, and when the facts have not been found by the tribunal appointed by law to pass upon them. The practice in this respect seems to have been long since well set- tled in applications for injunctions. It was based at first upon the distinction between common and special injunctions. The former was granted in aid of or as secondary to another equity, as in the case of an injunction to restrain proceedings at law, in order to protect and enforce an equity which could not be pleaded, and it issued, of course, upon the coming in of the bill, without notice. As soon as the defendant answered, he could move to dissolve the injunction, and it was then for the court, in the exercise of its sound discretion, to say whether, on the facts disclosed by the an- swer, or, as it is technically termed, upon the equity confessed, the injunction should be dissolved or continued to the hearing. If the facts constituting the equity were fully ajid fairly denied, the in- junction was dissolved, unless there was some special reason for continuing it. Not so with a special injunction, which is granted for the prevention of irreparable injury, when the preventive aid of the court of equity is the ultimate and only relief sought, and is the primary equity involved in the suit. In the case of special in- junctions the rule is not to dissolve upon the coming in of the an- swer, even though it may deny the equity, but to continue the in- junction to the hearing, if there is probable cause for supposing that the plaintiff will be able to maintain his primary equity, and there is a reasonable apprehension of irreparable loss unless it re- main in force, or if, in the opinion of the court, it appears reason- ably necessary to protect the plaintiff's right until the controversy between him and the defendant can be determined. It is gener- ally proper, when the parties are at issue concerning the legal or equitable right, to grant an interlocutory injimction to preserve the right in statu quo until the determination of the controversy, and especially is this the rule when the principal relief sought is in itself an injimction, because a dissolution of a pending interlo- cutory injunction, or the refusal of one, upon application therefor in the first instance, will virtually decide the case upon its merits, and deprive the plaintiff of all remedy or relief, even though he should be afterwards able to show ever so good a case. The princi- ples we have attempted to state are, we think, well supported by the authorities upon the subject. 1 High on Injunction (3d ed). § 6; Jarman v. Saunders, 64 N. C. 367; Heilig v. Stokes, 63 N. C. 612; Blackwell Durham Tobacco Co. v. McBlwee, 94 N. C. 425; Sec. 5.] EXTEAORDINABY REMEDIES. 815 Purnell v. Daniel, 43 N. C. 9; Bispham's Eq. (6th ed.) § 405. The cases of Marshall v. Commissioners, 89 N. C. 103, Lowe v. Commissioners, 70 N. C. 532, and Capehart v. Mhoon, 45 N. C. 30, would seem to be directly in point. . . . The injunction sought in this case is special, and we must be gov- erned by the established rule applicable to that class of injunc- tions in deciding the question now presented. The Code provides expressly for such an injunction. Code, § 338 (2). Judge Bryan has merely granted a provisional injunction to the hearing so that the controverted matters may then be settled by a jury, and the plaintiffs' right to a perpetual injunction be thus determined upon the merits. As said by Justice Bynum in Lowe v. Commis- sioners, supra, "The novel and important questions raised by tho pleadings, and ably discussed before us, do not come up for de- cision now. '.' We decide nothing upon the merits, but simply hold that the facts should be found in the ordinary way, so that we may consider and decide the case, if it again comes before us, on all of the facts as ascertained, and not merely upon facts now dis- puted, which may never be found by the jury. . Without passing upon the controverted facts, we are of the opinion that, in the present state of the pleadings and proofs, there was no error in the ruling of the court below, and the in- junction should be continued to the hearing. This is in accord- ance with the practice in such cases as stated in Erwin v. Morris (at this term), 49 S. E. 53. No error. See "Injunction," Century Dig. §§ 5, 374-384; Decennial and Am. Dig. Key No. Series §§ 6, 172. DIGGS V. WOLCOTT, 4 Cranch, 179. 1807. Injunction from V. 8. Court to Stay Proceedings in State Court. This was an appeal from a decree of the circuit court for the district of Connecticut, in a suit in chancery. The appellants, Diggs and Keith, had commenced a suit at law against Alexander Wolcott, the appellee, in the county court for the county of Middlesex, in the state of Connecticut, upon two promissory notes given by Wolcott to one Richard ilatthews, for the purchase of lands in Virginia, and by him indorsed to the ap- pellants ; whereupon Wolcott filed a bill in chancery in the su- perior court of the state, against the appellants Diggs and Keith, and also against Robert Young and Richard Matthews, praying that Diggs and Keith might be compelled to give up the two notes to be cancelled, or be perpetually enjoined from proceeding at law for the recovery thereof, etc. This suit in chancery was removed by the appellants from the state court into the circuit court of the United States for the dis- trict of Connecticut, where it was decreed that Diggs and Keith should, on or before a certain day, deliver the notes to the clerk of the court, and in default thereof should forfeit and pay to Wol- 816 EXTRAORDINARY REMEDIES. [Ch. 10. cott $1,500; and that they should be perpetually enjoined, etc., and that Eobert Young should repay to the appellee the amount of principal and interest which the latter had paid on account of the purchase of the lands; and that the appellee should deliver up to the clerk the surveys of the lands, and the bond of convey- ance ; and in default thereof should pay to E. Young the sum of $20,000. The case was argued upon its merits by C. Lee and Swann, for the appellants, and by P. B. Key, for the appellee; but the court being of opinion that a circuit court of the United States had not jurisdiction to enjoin proceedings in a state court, reversed the de- cree. For a full discussion of the proposition contained In the principal case, see 1 Gould & Tucker's Notes, p. 191, sec. 720, and 1 Rose's Notes, 275. See "Courts," Century Dig. §§ 1418-1430; Decennial and Am. Dig. Key No. Series § 508; "Injunction," Century Dig. § 72. TYLER V. HAMMERSLEY, 44 Conn. 419, 26 Am. Rep. 479. 1877. Injunction Against Proceeding at Law; Against Judgment and Execu- tion at Law; to Stay Money in the Hands of a Sheriff, etc. [Bill for an Injunction, reserved for advice of the supreme court. In- junction denied and bill dismissed. The bill alleged that the superior court had issued a peremptory man- damus, commanding a railroad company to stop its trains at a certain station; that a writ of error was sued out before the mandamus was served; that the plaintiffs were directors of the railroad company, and had not obeyed the mandamus because they considered its operation superseded by the writ of error; that thereupon they were adjudged in contempt and ordered to be sent to jail for disobedience to such writ unless they obeyed it within twenty days; that the directors sued out a writ of error to reverse this order. The prayer was that the execu- tion of the contempt order be restrained until the writs of error above mentioned were disposed of.] HovEY, J. Courts of equity are clothed with jurisdiction to re- strain, by injunction, proceedings at law in all cases where, by fraud, accident, mistake, or otherwise, a party has obtained an advantage in a court of law, which must necessarily make that court an instrument of injustice. In cases of that description the restraint may be imposed to stay trial, and after trial and verdict to stay judgment, and after judgment to stay execution, and after execution to stay money in the hands of the oiScer. But after a judgment an injunction will not be granted to stay its execution, unless there has been fraud or collusion in obtaining it or the ver- dict upon which it was founded, or where the party has been un- able to defend himself effectually at law without any fault or negligence of his own, or where the plaintiff has possessed himself of something by means of which he has obtained an unconscien- tious advantage. When an injunction is granted to stay proceed- ings in the courts of law, it is in no just sense a prohibition to Sec. 5.] EXTRAORDINARY REMEDIES. 817 those courts in the exercise of their jurisdiction. It is not ad- dressed to them and does not even affect to interfere with them. The process is directed only to the parties. It neither assumes any superiority over the court in which the proceedings are had, nor denies its jurisdiction. It is granted on the sole ground that from certain equitable circumstances of which the court granting the process has cognizance, it is against conscience that the party inhibited should proceed in the cause. The object, therefore, really is to prevent an unfair use being made of a court of law, in order to deprive another party of his just rights or subject him to some unjust vexation or injury which is wholly irremediable by a court of law. Mitf . Eq. PI. by Jeremy, 127, 128, 131 ; Eden on Injune. ch. 2, p. 4; 2 Dan Ch. Pr. 1623; Earl of Oxford's Case. 1 Ch. Rep. 1; 3 Lead. Cas. in Eq., by Hare & "Wallace, 3d Am. Ed., 155. The case stated in the bill before us does not come within either of these principles. . . . Bill dismissed. No injunction will issue to prevent the enforcement of a judgment at law because of mere error; but it will issue to prevent the enforcement of such judgments if obtained by fraud and other foul means. In such cases the decree is, that the party shall consent to a new trial in the court of law and that, until such trial be had, the party be restrained from enforcing his judgment. Stockton v. Briggs, 58 N. C. at p. 314. See further as to the ruling in the principal case. Chambers v. Penland, 78 N. C. 53; Jones v. Cameron, 81 N. C. 154; Southerland v. Harper, 83 N. C. 200; Cunningham v. Bell, lb. 328; Walker v. Gurley, lb. 429; Grant v. Moore, 88 N. C. 77; Albright v. Albright, lb. 238; Turner v. Cuthrell, 94 N. C. 239; Stout v. McNeill, 98 N. C. 1, 3 S. B. 915. For when one can be restrained from suing in another state, see Wierse v. Thomas, 145 N. C. 261, 59 S. E. 58, 15 L. R. A. (N. S.) 1008, and note. See "Injunction," Century Dig. §§ 24-65; Decennial and Am. Dig. Key No. Series, §§ 25-28. HARGETT v. BELL, 134 N. C. 394, 46 S. E. 749. 1904. Injunction to Prevent Commission of a Grime; to Test Validity of Town Ordinances. [Action in the nature of Quo Warranto and for an Injunction to re- strain defendant from further selling liquor contrary to a statute pro- hibiting such sale. A restraining order was issued and dissolved. Prom the order of dissolution the plaintiff appealed. Whole cause dismissed.] Clark, C. J. . . The sole question is as to the validity of this license which the relator claims to be void. That matter can properly be determined, as to defendant, only by a criminal prose- cution. "When the license is set up as a defense, the court will pass upon its validity. The defendant, if he is selling liquor without a valid license, is entitled to a trial by jury, and cannot be deprived of it by a proceeding for contempt for violation of an injunction commanding him not to commit the crime. An injunction was held invalid to test the validity of a town ordinance in Paul v. Washington (at this term) 134 N .C. 363, 47 S. E. 793; Scott v. Smith, 121 N. C. 94, 28 S. E. 64; "Wardens v. Washington, 109 Remedies — 52. 818 EXTRAORDINARY REMEDIES. [Ch. 10. N. C. 21, 13 S. E. 700; Cohen v. Commissioners, 77 N. C. 2, in which Keade, J., says: "We are aware of no principle or prece- dent for the interposition of a court of equity in such cases. ' ' There is no equitable jurisdiction to enjoin the commission of crime. 1 High, Inj. (3d ed) § 20. The court of equity cannot en- join the judge and solicitor from the enforcement of the criminal law, and an adjudication between the parties to this action would be a vain thing, for the solicitor could notwithstanding proceed in the criminal action, in which the validity of the alleged license must still be determined. On this ground, injunction against an alleged illegal sale of liquor was denied. Atty. Gen. v. Schweick- ardt, 109 Mo. 515, 19 S. W. 47. In Patterson v. Hubbs, 65 N. C. 119, Pearson, C. J., says that an injunction is "confined to cases where some private right is a subject of controversy." As is above said, if an injunction to prevent the commission of a crime could issue, the violation of the order — the crime — could be pun- ished by proceedings for contempt by the judge without a jury, but the constitution guarantees to one charged with crime the right of trial by jury. Article 1, § 13. The method here at- tempted, if sustained, would be "government by injunction." The court below properly dissolved the restraining order, and, there being no cause of action stated, the court here will, ex mero, dismiss the action. Action dismissed. See ch. 5, sec. 2; 21 L. R. A., 84, and note. Compare 11 L. R. A. (N. S.) 1060, and note. See also 21 lb. 585, and note. See "Injunction," Century- Dig. § 102; Decennial and Am. Dig. Key No. Series § 176; "Intoxicating Liquors," Century Dig. § 397; Decennial and Am. Dig. Key No. Series § 258. GREEN V. GRIFFIN, 95 N. C. 50. 1886. Effect of Appeal Upon an Order for an Injunction. [Rule upon Griffin to show cause why he should not Xte attached for contempt for disobeying an Interlocutory Injunction. Respondent ad- judged guilty of contempt and fined and imprisoned. Appeal by re- spondent. Affirmed. There was an interlocutory order made and served on Griffin, forbid- ding him to join his wall to that of the plaintiff. From this order Griffin appealed to the supreme court and perfected his appeal. Being of the bona fide opinion that the appeal vacated the order of injunction, and act- ing under the advice of counsel that such was the law, Griffin proceeded to disobey the order. Only that part of the opinion which discusses the effect of the appeal, is here inserted.] Smith, C. J. The record raises only two questions: 1. The ef- fect of the appeal upon the interlocutory order ; and, if still opera- tive, 2. The sufficiency of the defense, that the act of alleged eon- tempt was done with the advice of counsel, and in full assurance that it was not in violation of the order. Both of these proposi- Sec. 5.] EXTRAORDINARY REMEDIES. 819 tions, in an affirmative form, have been strenuously maintained in the argument of appellant's counsel, and are before us for con- sideration. The defendant insists that the appeal, when perfected, annulled the order for all purposes, and left the parties against whom it was directed as free to act as before it was made. If this were so, it is manifest the right to arrest the action of one committing irre- parable damage, by a restraining order, could be easily defeated by taking an appeal and consummating what was intended, before it could be acted upon in the higher court. Shade trees could be cut down, property removed out of the jurisdiction of the court, beyond recovery, or any other wrong, intended to be prevented, perpetrated, so that when a final judgment or perpetual injunc- tion was rendered, it would be vain and useless. The remedy sought by the process might thus become illusory, and success in the suit be followed by no benefit to the aggrieved party. The cases cited in support of so unreasonable a contention, Bledsoe v. Nixon, 69 N. C. 81, and Isler v. Brown, lb. 125, fol- lowed in Skinner v. Bland, 87 N. C. 168, decide that the whole cause is removed by an appeal from a final judgment disposing of the controversy and constituted in the appellate court, when it has been regularly and legally perfected. But while the judgment is vacated for the purpose of effectuating the transfer from one court to another, the cases do not decide that the restraining order becomes thereby wholly inoperative, and that the mandate con- tained in it may be avoided. The other cases cited, of appeals from a subsidiary order, made during the progress of the cause and necessary to secure the fruits of an ultimate recovery, simply declare that the ruling of the court is withdrawn from the juris- diction of the judge, and must remain without addition, modifica- tion, or other change, to be passed on hv the appellate court. Mc- Rae v. Comrs. 74 N. C. 415; Coates'v. Wilson, 94 N. C. 174. The appeal, like a writ of error, does not disturb the interlocu- tory order, but suspends action on it, intended to carry it into ef- fect, until its legality is tested in the court above, and this being decided and certified to the superior court, then, if sustained, that court is directed to proceed upon the judgment as already exist- ing ; or if declared erroneous, to reverse or modify it, in conform- ity to the law declared. The injunction requires no positive ac- tion, but that a party refrain from doing what is inequitable and injurious to another. ' ' An appeal from a decree dissolving an in- junction, " remarks a recent author, "does not have the effect of reviving and continuing the injunction itself, since the process of the court, when once discharged, can only be revived by a new exercise of judicial power. An appeal being merely the act of the party, cannot of itself affect the validity of the order of the court, nor can it give new life and force to an injunction which the court has decreed no longer exists." High on Inj. sec. 893. As the ap- 820 EXTRAOEDINAEY REMEDIES. [Gh. 10. peal does not vacate the decree of dissolution, but leaves the order to which it applies in force, so, for reasons equally strong, the ap- peal does not neutralize the order for the injunction. The current of adjudications is in this direction. In Sixth Ave. R. R. Co. V. Gilbert B. R. R. Co., 71 N. Y. 430, determined in the Court of Appeals, it is said: "By the appeal with stay of pro- ceedings on the part of the plaintiff, in enforcing the judgment, the judgment was not annulled or its obligation upon the defen' credits, — the recovery in all such cases going to the whole con- tract, and extinguishing all claim to that which was discarded." JURISDICTION. 897 He concludes, on this point, that a contract originally beyond the jurisdiction of a justice may be properly brought within it by credit, if the balance only be claimed. A large number of cases by the courts of the different states on this question may be found collated in an opinion by Chief Justice Bleckley in a case lately decided bj the supreme court of Georgia. After saying that ' ' whether a creditor whose demand is created by express contract, such as a promissory note, can voluntarily abandon a part of his claim, or enter a credit upon it for the express purpose of reduc- i'jg it within the jurisdiction of a given court, is a question upon which the authorities differ," he adds that "it is probable the weight of decision is with the affirmative." Stewart v. Thomp- son, 85 Ga. 830. The authorities on this question may also be found collated on pages 61 and 62 of "Courts and Their Juris- diction," a book by Judge Works, where the author states the rule as follows : " A plaintiff may bring his action for less than is due him, remitting the balance, and thus bring his case within the jurisdiction of an inferior court." See also note to Grayson V. Williams, 12 Am. Dec. 569, where the editor cites a number of eases holding, in substance, that it is not the amount of the plain- tiff's claim, but the sum that he actually demands, which deter- mines the jurisdiction. We have been favored by briefs from the counsel representing the different parties in this cause, in which the cases upon this (luestion by the courts of the different states have been discussed and commented upon in an able and admirable way, but it would serve no useful purpose to discuss such cases further. We will only announce our conclusion that the appellants had the right to bring their case within the jurisdiction of the justice of the peace by remitting a portion of the principal of their note. We do not see that it is any violation of the rights of a debtor to al- low his creditor to remit by voluntary credits a portion of his debt, and thus bring his claim within the jurisdiction of an in- ferior court. After the judgment of the inferior court is ren- dered upon the reduced claim, the part remitted is completely ex- tinguished, and can never afterwards be asserted against the debtor. If the creditor desires to avail himself of the speedy jus- tice furnished by these inferior courts, at the expense of a portion of his claim, he should be allowed to do so. We therefore con- clude that the judgment of the justice of the peace against Sallie Falconer for $299 and interest was valid. The decree of the cir- cuit declaring the said judgment void, and enjoining the collec- tion of the same, is therefore reversed. For a very full note on the question embraced in the principal case, see 28 L. R. A. 221-230. This matter is regulated by statute in North Carolina, see Pell's Revisal, § 1421, and notes; see also Riddle v. Milling Co., 150 N. C. at p. 690, 64 S. E. 782. See "Justices of the Peace," Cen- tury Dig. § 170; Decennial and Am. Dig. Key No. Series § 44. Remedies — 57. 898 JURISDICTION. [Cll. 12. MOORE V. THOMPSON, 44 N. C. 221. 1853. Fraud Upon the Jurisdiction of the Court. [Action of debt brought in a justice's court, for $100 alleged to be due by note. The justice gave judgment against the defendant who appealed to the superior court. In the superior court the defendant pleaded in abatement that the note sued on was given for $110.02, and that without the consent of the defendant the plaintiff had credited the note with $10.02 in order to bring it within the jurisdiction of a justice's court "thereby committing a fraud upon the law . . . and the legal rights of the defendant." Plaintiff demurred to this plea and the demurrer was sustained, overruling the plea. Defendant appealed. Reversed.] Pearson, J. . . The creditor, without the knowledge or consent of the debtor, enters a credit on the note for the purpose of giving jurisdiction; the debtor has never assented to, or rati- lied this credit, but has always objected to it. This does not amount to a payment, and the magistrate had consequently no jurisdiction. It is a familiar maxim of law, "No one can make another his debtor without his consent. ' ' The converse is equally true. No one can give another a specific article or sum of money, unless he chooses to accept it ; and although in this latter case the acceptance is usually presumed (as it is supposed to be for his benefit), yet there Jiiay be reasons why he may not choose to ac- cept (as in our case), and then the presumption is rebutted. Sup- pose a creditor, whose debt is about being barred by the statute of limitations or the presumption of payment, enters a credit; no effect whatever is given to it, unless the debtor assents to it. It is said this is like the case of a plaintiff who remits a part of his damages to prevent a variance. There is no analogy; for then the court allows the remittitur as an amendment of the record. State V. Mangum, 28 N. C. 369 ; Portescue v. Spencer, 24 N. C. 63 — both assume that the case now under consideration would be a fraud upon the jurisdiction. Judgment reversed, and judg- ment that the writ be abated. See note to "next preceding case. See "Courts," Century Dig. § 428; Decennial and Am. Dig. Key No. Series § 169; "Justices of the Peace," Century Dig. §§ 170, 171; Decennial and Am. Dig. Key No. Series § 44. "WISEMAN V. WITHEROW, 90 N. C. 140. 1884. Fraud Upon the Jurisdiction of the Court. [Action commenced in the superior court to recover $312. It appeared that, from the plaintiff's own showing, only $58.75 was really due and that plaintiff knew this when his action was commenced. The judge thereupon dismissed the action on defendant's motion, and the plaintiff appealed. Affirmed.] Merrimon, J. It is the sum of money demanded in the action upon the contract, express or implied, that determines the ques- tion of jurisdiction, in a case like the present one, but the law contemplates that the plaintiff will make his demand in good JURISDICTION. 899 faith and with reasonable certainty, and with no purpose to evade or give the jurisdiction improperly. If it manifestly appears to the court that the sum demanded is greater than was really due, tion, when in truth and law it could not attach, then, in the lan- guage of the late Chief Justice Pearson, in Froelieh v. lExpress Co., arid was so alleged for the purpose of giving the court jurisdic- 67 N. C. 1, "it is the duty of the court, ex mero motu, to interfere and prevent an evasion of the constitution." In this case, the court below does not specify the particular ground upon which the judgment dismissing the action for want of jurisdiction was founded, but we must presume, in view of the facts appearing in the record, that it rested upon the ground that there was obviously a purpose to give the court jurisdiction, when the facts and law arising upon them would not allow the same. It seems to us that there were facts that warranted the action of the court. The plaintiff sued for $312, for feeding and lodging the defendant's servant, at regular intervals, for a period em- bracing several years. Pending that time, the defendant from time to time paid on account of such running indebtedness sundry sums of money, thus discharging the same pro tanto, until, at the time the action was brought, he owed her only the sum of $58.75. This appears from the plaintiff's own showing. Her daughter, under her direction, kept the account, and she knew or could have known what sum was due her. It was not fair or proper to allege that so large a sum was due, when in fact, within her knowledge, so small a one was due. We think the court was war- ranted in giving the judgment appealed from. There is no error and the judgment must be affirmed. "Manifestly, 'tbe sum demanded' is used in tlie sense of 'the amount in dispute,' and on the assumption that plaintiffs will act fairly and only demand such an amount as they may reasonably expect to recover; when the contrary appears, it is the duty of the courts 'ex mero motu' to in- terfere and prevemt an evasion of the constitution. In olden times, when it was found that, by reason of the vast increase in commercial dealings, the court of Common Pleas in England, to which was assigned by statute all actions founded on contracts, was oppressed with busi- ness, the fiction of quo minus in the court of Exchequer and the con- trivance of the ac etiam clause in the King's Bench were winked at and favored by the courts, in order to divide the iurisdiction in regard to contracts, and to relieve the court of Common Pleas of a part of a burden which was too heavy for it. But the condition of things here is entirely different, and the courts are not at liberty to wink at, or favor, an attempt to evade the constitution." Froelieh v. Express Co., 67 N. C. at p. 3. See also Realty Co. v. Corpening, 147 N. C. 613, 61 S. B. 528. See "Courts," Century Dig. § 423; Decennial and Am. Dig. Key No. Se- ries § 121. BOING V. RAILROAD, 87 N, C. 360, 363. 1882. Jurisdiction of an Appellate Court in Gases in Which It Has No Orignal Jurisdiction and in Cases in Which Its Jurisdiction is Concurrent With That of the Inferior Court. [Action commenced In a justice's court to recover $20 damages for Injury .to a cow. The justice gave judgment against the defendant who appealed to the superior court, where judgment was rendered against the plaintiff and he appealed. Reversed. The point that the justice had no 900 JURISDICTION. [Ch. 12. jurisdiction was not made until the case was reached in the supreme court. Only that portion of the opinion which discusses the question of jurisdiction, is here inserted.] Ashe, J. . .In this court, the counsel for the defendant moved to dismiss the action for want of jurisdiction in the supe- rior court, basing his motion upon the fact that the action was commenced before the justice of the peace under section 10, chap- ter 16, of Battle's Revisal, which had been declared to be uncon- stitutional. Nance v. R. R., 76 N. C. 9. The answer to that is that the act of 1876-7, ch. 251, gave to justices of the peace con- current jurisdiction of civil actions not founded on contract, when the value of the property in controversy does not exceed tifty dollars ; and although the justice in this case summoned freeholders to assess the damages, it was yet his judgment, though irregular and perhaps erroneous. The counsel seems to have overlooked the distinction between the cases, where the jurisdiction of the superior courts and the courts of justices of the peace is concurrent, and where it is ex- clusive in the one or the other. "We take the distinction to be, that i.vhere it is concurrent, and a case is carried by appeal to the supierior court, and the appellant, as in this case, files an answer under leave of the court and goes to trial without objection, the court will have cognizance of the matter by virtue of its original jurisdiction of the subject matter of the action, and by the con- sent of the parties thus manifested, however irregular the proceed- ings may have been in the justice's court. "West v. Kittrell, 8 N. C. 493. But when a justice of the peace takes cognizance of an action of which he has no jurisdiction, and the case is carried by appeal to the superior court, that court acquires no jurisdic- tion because its jurisdiction is altogether derivative, and depends upon that of the justice from whose court the appeal is taken. Allen V. Jackson, 86 N. C. 321 ; Boyett v. Vaughn, 85 N. C. 363. Error. For a full discussion of the concurrent jurisdiction of the superior court and justices' courts, see Houser v. Bonsai, 149 N. C. 51, 62 S. E. 776. See "Courts," Century Dig. § 489; "Appeal and Error," Century Dig. §§ 81-87; Decennial and Am. Dig. Key No. Series § 20. ROBERSON V. ROCHESTER BOX CO., 171 N. Y. 538, 546, 64 N. E. 442. 1902. Jwrisiiction of Courts of Equity, Origin of. Parker, C. J. . It is undoubtedly true that in the early days of chancery jurisdiction in England the chancellors were accustomed to deliver their judgments without regard to princi- ples or precedents and in that way the process of building up a system of equity went on, the chancellor disregarding absolutely many established principles of the common law. "In no other JURISDICTION. 901 way," says Pomeroy, "could the system of equity jurisprudence have been commenced and continued so as to arrive at its present proportions. ' ' In their work the chancellors were guided not only by what they regarded as the eternal principles of absolute right, but also by their individual consciences, but after a time when "the period of infancy was past and an orderly system of equi- table principles, doctrines and rules began to be developed out of the increasing mass of precedents, this theory of personal con- science was abandoned; and 'the conscience,' which is an element of the equitable jurisdiction, came to be regarded, and has so continued to the present day, as a metaphorical term, designating the common standard of civil right and expediency combined, based upon general principles and limited by established doc- trines to which the court appeals, and by which it tests the con- duet and rights of suitors — a juridicial and not a personal con- science." (Pom. Eq. Jur. §§ 48, 57.) THORN V. WILLIAMS, 4 N. C. 30. 1814. Jurisdiction of Courts of Equity, General Principles of. Seawell, J. . "Whenever the principles of the law by which the ordinary courts are guided, tolerate a right, but afford no remedy; or where the law is silent, and interference is neces- sarj'^ to prevent a wrong ; or where the ordinary courts are incom- petent to a complete remedy, a court of equity will afford relief. So also in cases where it is essential to a fair trial in the courts of law, a court of equity will lend assistant aid, by compelling discovery of matters necessary for that end, and in this respect she acts as a handmaid of the law. But in no instance is it be- lieved, a court of equity will interpose where the party applying has a fair and complete remedy at law. . . . HIPP V. RABIN, 19 Howard, 271, 278. 1856. Jurisdiction of Courts of Equity, Limitations of. Campbell, J. . . . Whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judg- ment which affords a plain, adequate, and complete remedy, with- out the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury. . . . HENDERSON v. BATES, 3 Blackford, 461. 1834. Jurisdiction of Courts of Equity, Instances of. McKiNNET, J. The principal question to be settled in this case is, does the bill of Henderson show that he is without relief at law and that a court of equity should interpose? The complain- ant contends that the case presented by the bill is peculiarly ap- 902 JURISDICTION. [Ch. 12. propriate to a court of equity, and in support of his position as- sumes several grounds, each of which in the course of this ex-' amination will be noticed. The object of the bill is to protect from sale certain personal property, levied on by executions against Town, and against Town & Pulliam. A part of this prop- erty is claimed by Henderson, by a transfer made to him by the sureties of Town, and the residue is claimed on original owner- ship, and a denial of the divestment of his right by the possession of Town, and of Town & Pulliam. The rule is well settled that relief will not he granted in chan- cery when, at law, a complete remedy is afforded. 3 Atk. 740 ■, 3 Bro. Pari. Cas. 525; Mitf. PI. Ill; Cunningham v. Caldwell, Hard. 123; Waggoner's Trustees v. McKinney et al., 1 Marsh. 479. It is also well settled that chancery will not entertain a bill when personal property is the siibject-matter, unless in some peculiar cases ; nor will it interpose and enjoin a sale of personal property, taken in execution, either on the ground that it is not the property of the defendant in the execution, but belongs to a third person, or. that it belongs to the complainant, unless it be shown that if the property were sold the complainant would be without remedy at law. Nesmieth v. Bowler, 3 Bibb. 487 ; Ken- drick V. Arnold, 4 Bibb. 235. The remedy at law must not only he incomplete, but the dam- ages not an adequate compensation, to authorize a court of equity to interpose. In the case of Bowyer v. Creigh, 3 Rand. 25, the question of jurisdiction is fully examined, and the position sus- tained, that equity interferes in no ease where the plaintiff claims as encumbrancer merely, and, where he claims as owner, only in those cases where, from the peculiar nature of the property and circumstances of the case, the remedy at law is incomplete. In the cases of Wilson v. Butler. 3 Munf. 559, Scott et ux. v. Halli- day, 5 Id. 103, and Sampson v. Bryce, 5 Id. 175, in which equity exercised jurisdiction, the plaintiff claimed the property, not as security for money, but as belonging of right to himself, and this property was slaves; for this property being capable of possess- ing moral qualities, and thus rendered invaluable, it was consid- ered that damages would not be an adequate compensation. The court, in Bowyer v. Creigh, review the grounds of chancery juris- diction, and among others present the following: "Where, pend- ing a litigation, the property in dispute is in danger of being lost, and the powers of the court in which the controversy depends are insufficient for the purpose, equity will interpose to preserve it.'' "Equity exercises a jurisdiction to put an end to the oppression of repeated litigations, after satisfactory determinations of the question, upon the principle interest reipublicae ut sit finis lit- ium. " It would thus seem that, in cases of personal property, the interposition of a court of equity is rare, and only occurs when the legal remedy is incomplete, and damages are not an adequate compensation. The case in 3 P. Wms. 390, of the ancient silver altar piece, in 1 Vem. 273, of the horn hy which an estate was JURISDICTION. 903 held, in 3 Ves. 70, of the silver tobacco box belonging to a club, and some others, and in Virginia, of slaves, are examples of such interference afforded by the books, and show that in those cases the remedy at law was incomplete. Those cases rest upon their own peculiar grounds, and do not affect the rule laid down. It is said, however, that this is a bill of peace, thus giving jurisdiction to a court of chancery, and therefore the injunction was correctly granted, and should not have been dissolved. As this position was strongly urged, it would seem to require par- ticular examination. Maddock, in 1 vol. p. 166, says, "Bills of peace are made use of where a person has a right which may be controverted by various persons, at different times, and by differ- ent actions, and the court wiW thereupon prevent a multiplicity of suits by directing an issue to determine the right, and ulti- mately an injunction. Another occasion where a bill of this kind is resorted to is, where there have been repeated attempts to liti- gate the same question by ejectment and repeated and satisfactory trials, in which cases the court, upon such a bill, preferred by all the parties interested, or by some of them in the names of them- selves and the rest, will grant a perpetual injunction to restrain further litigation." The examples and authorities referred to by Maddock show the kind of right to which the text applies. It is that which exists between lords of manors and their tenants, and between tenants of one manor and another. Mayor of Tork v. Pilkington, 1 Atk. 282 ; Ld. Tenham v. Herbert, 2 Atk. 483. Such bills also lie for duties, as in the case of the City of London v. Perkins, where the city of London brought only a few persons before the court, who dealt in those things whereof the duty was claimed, to establish a right to it. 1 Harr. C. 127. "Where a bill was brought by one tenant of a manor, suggesting a custom for the tenants of the manor of A (of which he was one), to cut turves in the manor of B to quiet him, and to have an issue directed as to the right, the court said, 'this bill is improper and inconsistent with the nature and end of a bill of peace, which is, that where several persons having the same right are disturbed, on application to the court to prevent expense and multiplicity of suits, issues will be di- rected, and one or two determinations will establish the right of all parties concerned, on the foot of one common interest, and the bill is preferred by all the parties interested, or a determinate number in the name of themselves and the rest; but in this case one only brings the bill on the general right, and not on the foot of any particular right, ' and therefore the bill was dismissed with costs." 1 Madd. 172. So a bill of this kind, after five trials in ejectment, and verdicts in them all, has been entertained, and a perpetual injunction granted. Ld. Bath v. Sherwin, Pr. Ch. 261. In the cases in which, to prevent a multiplicity of suits, chancery has entertained jurisdiction, the plaintiff ought to establish his riqht bn a determination of a court of law in his favor, before his bill in equity. Mitf. PI. 128. 904 JURISDICTION. [Ch. 12. The ease of the Trustees of Ilimtington v. NieoU, 3 Johns. 566, has been cited by the complainant as sustaining his bill. Between that case and the present, little if any analogy is perceived. In that ease several actions of trespass were brought, and the subject- matter was land. A verdict in one case was found, and the other cases were ready for trial, and from the nature of the respective claims, litigation would not have been arrested by the suits then pending. The jurisdiction in equity, in that case, was founded on one verdict, the pendency of several actions, the liability to others, the great expense attending those actions, and from the case being within the rule laid down in Tenham v. Herbert, 2 Atk. 483, that there were some cases in which a man, by a bill of peace, might come into chancery before his right was established at law. The distinction was applied to disputes between lords of manors and their tenants, and between the tenants of one manor and an- other. The court in New York, even with this distinction, was, however, divided as to the jurisdiction. From this view of the law, the bill before us is not entitled to the character of a bill of peace, and cannot be regarded as one. It is further urged by the complainant that equity will, pend- ing litigation, where property, the subject of litigation, is in dan- ger of being lost, interpose and preserve it. This is unquestion- ably a ground of jurisdiction, as previously noticed, but it is ob- viously not presented by the ease before us. The litigation, pend- ing, such as required, cannot be supposed to apply to the present case, and the record does not furnish evidence of any other. This suit does not constitute such pending litigation, for our courts of chancery are fully competent to make all necessary orders, and to adopt effective means for the preservation of property, the subject of litigation in them. The litigation is such as is pending in some other court, whose powers are unequal to that object. Another ground is assumed: that the transfer by Town to his sureties amounted to a mortgage or security to indemnify them against their liability to the complainant, and that the transfer by the sureties to the complainant did not change the nature of the transaction, and that, consequently, the complainant should enjoy all the advantages of a mortgagee, and be entitled to relief in a court of equity. To this position two objections arise. 1. It does not appear that the transfer was a mortgage, or in the nature of a mortgage ; 2. That if it were a mortgage, the conclusion of jurisdic- tion would not follow. The bill does not aver that the transfer was conditional, and on its face it is absolute. There is no averment that a defeasance was executed, qualifying the transfer, and no instrument of that kind is made an exhibit. We are referred to Crumbaugh v. Smock, 1 Blackf. 305. That case scarcely has a feature resembling the one before us. That was a suit in equity to foreclose the equity of re- demption in a lot in Indianapolis. The assignment of the certifi- cate for the lot was absolute, but the assigned, on the same day, ex- JURISDICTION. 905 ecuted to the assignor a bond binding himself to reassign the cer- tificate on payment of the money lent with interest. The assign- ment under these circumstances was considered as a security in the nature of a mortgage. The second objection would seem to be fully answered by turn- ing to the case of Bowyer v. Creigh, 3 Rand. 25. That case was as follows: Caldwell being deeply indebted, and suits depending against him for a great amount, on which it was known judg- ments would go against him in the following May, executed in April, 1820, a deed of trust to John B. Caldwell for the security of a debt due to Bowyer, conveying a tract of land in Ohio, and all his personal property. The creditors obtained judgments, and had executions levied on a part of the property conveyed to the trustee. The trustee and the cestui que trust filed a bill of in- junction to stop the sale, claiming the property as security for their debt. The injunction was dissolved, and the court held that a court of chancery had no jurisdiction, because the law gave com- plete remedy. The other cases cited during this examination all go to establish the same doctrine. These are the most prominent positions taken to sustain the bill, and are obviously insufficient. The case presented shows a struggle between Town and sureties, and between Henderson and Town & Pulliam and the creditors of the latter; and as the case is not one in which chancery has juris- diction, and as the dismissal of the bill does not prejudice the 1 ights of the respective parties, we think the circuit court was cor- rect in dissolving the injunction and dismissing the bill, not only of Henderson, but of Pulliam. The complainant, if his case was proper for a court of chancery, has made unnecessary parties, and parties also, who, from the showing of a bill, were unconnected with the principal transaction. Entertaining this view, a majority of the court consider it unnecessary to enter into a particular ex- amination of the bill, or to express an opinion of the claim asserted by Henderson. See "Execution," Century Dig. §§ 507-510; Decennial and Am. Dig. Key No. Series § 171; "Equity," Century Dig. §§ 121-172; Decennial and Am. Dig. Key No. Series §§ 43-52. i5LY V. EARLY, 94 N. C. 1, 6-9. 1886. Legal and. Equitable Remedies, How Administered Under the Code Practice. [Action of ejectment to recover two tracts of land. The complaint was in the usual form, and the answer denied the material allegations of the complaint. The plaintiff, hy permission of the court, amended his complaint so as to allege that, by mutual mistake of the parties, he had conveyed one of the tracts of land sued for, to the defendant; that de- fendant had admitted such mistake and had consented to a proper cor- rection of the deed. Defendant answered the amended complaint and denied its allegations. The jury found that the land referred to in the amended complaint had been conveyed to the defendant hy mistake of 906 JURISDICTION. [Ch. 12. both parties. Defendant moved for jiudgment non obstante veredicto. Motion overruled, and judgment for the plaintiff. Defendant appealed. For an error in the charge of the judge with regard to the quantum of proof, the judgment was reversed. Only so much of the opinion as dis- cusses the question of jurisdiction, is here inserted.] Merrimon, J. . . Treating the right to have the deed cor- rected for the causes alleged, as a separate cause of action, as cer- tainly in some cases it might be, the plaintiff might have united it with the cause of action at first alleged. The Code, sec. 267, pro- vides, that, "the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore de- nominated legal or equitable, or both, when thej^ all arise out of, (1) the same transaction, or transaction connected with the same subject of action . . (5) claims to recover real property, with or without damages, for the withholding thereof, and the rents and profits of the same. " Plainly, the right to have the deed corrected was "connected with the same subject of action" — the land — and it was directly connected with, and affected the claim ' ' to recover real property. ' ' The same section provides, that when such causes of action are united, they must affect "all the parties to the action, ' ' and so they do in this case. Such causes of action may be united in the same complaint. One chief purpose of the Code is to facilitate litigation, without multiplicity of actions, and the power of the court to complete a litigation begun, by amend- ing the pleadings, is unlimited. Robinson v. "Willoughby, 67 N. C. 84; McMillan v. Edwards, 75 N. C. 81. But under the circumstances of this case, we think the ground of the equitable relief demanded, constituted a part of the plaintiff 's cause of action at first alleged, and he did not need to allege two distinct causes of action. His alleged right to recover the land, and directly in that connection and for that purpose, and as a part of it, to have the deed corrected, constituted his cause of ac- tion. The legal and equitable rights in respect to the land were so clearly connected, so essentially one, that they might not improp- erly be regarded and treated as constituting one cause of action. The defendant had possession of the land, and was seeking in that connection to take an inequitable advantage of a mistake in a deed, whereby the legal title was in him. A part of the plaintiff 's cause of action was the right to have the deed corrected. It is true that, under the common law method of procedure, this could not be so, because, under it, the plaintiff would recover the land by his possessory action at law, after he had had the mistake in the deed corrected in a separate court of equity, wherein alone he could obtain equitable relief; but under the Code method of procedure, as it prevails in this state, legal and equitable relief must be administered in the same court, and may be in the same action, and in some cases, in the same cause of action. The prin- ciples, doctrines and rules of law are distinct from those of equity, but they may be administered together by the same court, when it is appropriate and necessary to do so. McRae v. Battle. 69 N. C. JUEISDICTION. 907 98; Murray v. Blaekledge, 71 N. C. 492; Farmer v. Daniel, 82 N. C. 1.52; Condry v. Cheshire, 88 N. C. 375. . . . Under the present system of civil procedure in this state, issues of fact as distinguished from questions of fact, a,rising in equitable actions, as well as like issues arising in actions at law, are to be tried by a jury. Whether this is wise or not, is not for us to deter- mine, but it cannot be, that a jury should find the facts in respect to a question of mistake, such as that in this case, upon less evi- dence than a chancellor would do, sitting in a court of chancery. The strength of reason leads to a different conclusion. The law contemplates that a jury shall find such issues, as nearly as may be, as a chancellor would do in passing upon like issues. The court should be careful to instruct the jury in such cases, as to the na- ture of the issue, the application of the evidence produced before them, and, especially, that the instrument in writing to be cor- rected, is, of itself, strong evidence of what is expressed in it ; that, however, it is not absolutely conclusive ; and that from the evi- dence they should be thoroughly satisfied of the mistake alleged, before they would be warranted in finding the affirmative of the issue submitted to them. The peculiar nature of such issues ren- ders it necessary that this should be done. As we have said above, the court will not,' in the exercise of equitable jurisdiction in cases like this, grant relief, unless the proof of mistake be clear and sat- isfactory. Therefore, if the court should be of opinion, that in no reasonable view of the whole evidence produced on the trial of the issue, it is sufficient to warrant a verdict ascertaining the fact of mistake, then it ought to direct the jury to find the negative of the issue. In the trial by jury of issues arising in equitable matters, the principles, doctrines and rules of equity should be observed and applied, as nearly as may be, in the ascertainment of the facts. Otherwise, it would be difficult to administer equity at all in many cases. Todd v. Campbell, 32 Pa. St. 250; Piersall'v. Niele, 63 Pa. St. 420; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45. See Goldsboro v. Turner, 67 N. C. 403, for a somewhat different view of equity jurisdiction and practice under the Code system — especially with reference to trial by jury in causes solely cognizable by a court of equity under the old practice. In the judicial system of the United States government the courts of common law and of equity are still as distinct as they were in the time of Coke and Bacon, though the same judge has jurisdiction in each. Fost. Fed. Pr. (3rd ed.) § 4. Section 914, U. S. Rev. Stat. (U. S. Comp. St. 1901, p. 684), requiring the Federal courts to conform to the practice of the state in which they are held, does not apply to the courts of equity of the United States. 1 Dan. Chan. Pr. *313, note a. See "Ejectment," Century Dig. § 207; Decennial and Am. Dig. Key No. Series § 76; "Equity," Cent. Dig. § 350; Dec. and Am. Dig. Key No. Series § 148. 908 JURISDICTION. [Ch. Ik HOOKER V. STATE, 7 Blackford, 272, 273. 1844. What Constitutes a Court of Record. [Action of debt on a Judgment of a justice of the peace. Plea of nul tiel record and other pleas. The issues on the plea of nul tiel record was submitted to the jury. Verdict and judgment against the defendant. Reversed. The plaintiff below was the State, ex rel. Hayes, and Hooker was the defen3ant. Only that portion of the opinion which relates to the plea of nul tiel record, is here inserted.] Blackford, J. . . There was one issue, viz., that on the plea of nul tiel record, which should have been tried by the court. It was, to be sure, the judgment of a justice of the peace that was in question, but his court must be considered as a court of record. A court that is bound to keep a record of its proceedings, and that may fine or imprison, is a court of record. 3 Bl. Com. 24. A jus- tice's court is within that definition. Judgment reversed. See "Justices of the Peace," Century Dig. § 1; Decennial and Am. Dig. Key No. Series § 1. REEVES V. DAVIS, 80 N. C. 209. 1879. What Constitutes a Court of Record. [Action commenced in a justice's court upon a former judgment of a justice of the peace. Judgment against defendant, and he appealed to the superior court. In that court judgment was rendered against the defendant, and he appealed. AfBrmed. The judge held that a justice's court loas not a court of record, and defendant excepted.] DiLLARD, J. The action was commenced in a justice's court on the judgment of a justice, and from his court there was an appeal by the defendant to the superior court of Madison county and thence to this court. On the trial in the superior court the original judgment for the recovery of which the action was brought was offered in evidence, and when proof was being offered by one Creaseman, a justice of the peace, that he gave the judgment and the same was drawn up and signed by him or under his dictation, it was objected by the defendant that the judgment of a justice's court was not provable by law otherwise than by a duly certified transcript of the record from the justice's court, which objection was overmled and the defendant excepted. The court of a justice of the peace is an inferior court of lim- ited jurisdiction, and although he is required to keep a docket and enter his proceedings therein, it is not under our present system, and was not under our former system, a court of record. Led- Ijetter v. Osborne, 66 N. C. 379 ; Hamilton v. Wright, 11 N. C. 283 ; Carroll v. McGee, 25 N. C. 13. Not being a court of record, the rules of evidence established in relation to the authentication and proof of judgments of courts of record are not applicable to it, ■and there being no legislative provision as to how their judgments JURISDICTION. 909' are to be proved, there can be and is no better way than that which has obtained heretofore in the practice of our courts The rule has been for many years to admit the judgments of justices ' courts in evidence on proof of their handwriting, of their being in office at the time, and of the rendition of the same within their counties, and thereupon the same conclusiveness of effect was attributed to- them as to the judgment of courts of record shown forth by traji- script luider the seal of the court. Hamilton v. Wright, and Car- roll V. McGee, supra. We see no reason to depart from the rule on this subject, which has been so long observed in our courts, and in consistency therewith, we hold there was no error in the court be- low in overruling the objection of the defendant. . . . Af- firmed. As to what constitutes a court of record, see Bouv. L. D. 465; 11 Cyc. 657. As to whether or not a justice's court is one of record, see 24 Cyc. 623. See further as to courts of record, 8 Am. & Eng. Enc. L. 36. The principal case was aproved In State v. Grlffis, 117 N. C. 715, 23 S. E. 164. See Pell's Rev. § 1416, and note. See "Justices of the Peace," Century Dig. §§ 397, 398; Decennial and Am. Dig. Key No. Series § 135. ACKERSON V. ERIE RAILWAY CO., 31 N. J. L. 309, 311. 1865. Local and Transitory Actions. Jurisdiction and Venue. [Action brought in New Jersey tor damages resulting from an injury inflicted in New York. Defendant demurred on the ground that the action could not he maintained In the New Jersey courts hut should have heen brought In New York, In which state, as it appeared by the complaint, the alleged negligence and consequent Injury occurred. De- murrer overruled, and judgment against defendant.] Haines, J. The plaintiff was a passenger on the train of the defendants from Dunkirk to Port Jervis, in the state of New York ; and alleges that he was injured by reason of the cars running off the track, through the carelessness of the defendants and their servants. For the injuries thereby sustained he has brought his action in this state. The defendants demur to the declaration and assign for cause of demurrer, in various forms, that the action is local and cannot be maintained in this state ; but should have been brought in the state of New York, where the alleged carelessness occurred and the injury was done. For the decision of this case, we have only to recur to the well known and well settled rules of distinction hetween local and transitory actions. Locdl actions are such as require the venue to be laid in the county in which the cause of action arose. These embrace all ac- tions in which the subject or thing sought to be recovered is in its nature local; such as real actions of waste, when brought to re- cover the place wasted, as well as damages ; and actions of eject- ment. They are local because brought to recover the seizin or possession of lands, which are local subjects. Comyn's Dig. Ac- tion No. 1; Bacon's Abr., Actions local. A, a; Bouvier's Law Die. 910 JURISDICTION. [Ch. 12. tit. Action. Some other actions which do not seek the direct re- covery of lands or tenements, are also local, because they arise out of a local subject, or the violation of some local right or interest. ■Of this class are waste for damages only; trespass quare clausum fregit, trespass on the case for injuries to things real, as nuisances to houses or lands; disturbance of right of way, obstruction, or diversion of ancient watercourses. The action of replevin is local, although it is for damages only, and does not rise out of any local subject, because of the necessity of giving a local description to the thing taken. ■Transitory actions are such personal actions as seek only the re- covery of money or personal chattels, whether they sound in tort or contract. They are universally founded on the supposed viola- tion of rights, which, in contemplation of law, have no locality. 1 Chit. PI. 273 ; 1 Saund. 241, b, note 6. Judge Gould, in his work ■on Pleadings, ch. 3, sec. 112, says: "It will be found, as a general proposition, that actions ex delicto, in which a mere personalty is recoverable, are by common law transitory." If the action is merely transitory, the venue may be laid in the county where the cause of action arose, or where the plaintiff or defendant resides at the time of instituting the action ; or if the defendant be not an inhabitant of this state, in the County in which the process shall have been served. Nix. Dig. 782, pi. 5. The action in this case is not brought to recover anything local, nor does it arise out of any local subject, or the violation of any local right or interest. It arises out of the alleged negligence of the defendants and their servants, and seeks the recovery of pecu- niary damages for personal injuries sustained. It may be brought in this state, and the venue laid in any county in which the de- fendants can be served with process. The practice in this state, of long continuance, is in accordance with this rule of distinction. The demurrer must be overruled with costs, and judgment ren- dered for the plaintiff ; unless the defendants plead issuably to the declaration within thirty days. Judgment for plaintiff. Where the statutes of another state authorize a recovery for death hy wrongful act, and such statutes are substantially the same as those In North Carolina, an administrator appointed in North Carolina can sue in North Carolina for the death of his intestate which occurred in the other state from negligence there committed. Harrill v. Railroad, 132 N. C. 655, 44 S. E. 109, citing 13 L. R. A. 458, 15 L. R. A. 583, 103 V. S. 11, 38 Am. Rep 491. For what actions are local and what transitory, see Bouv. Law Die. vol. 2, pp. 272, 1133; Shipman's Common Law Plead, pp. 383-386. In transitory actions the amount of the recovery is governed by "the lex loci and not by the lex fori. North Pac. R. R. v. Babcock, 154 U. S. l&O, 14 Sup. Ct. 978. For jurisdiction of equity over suits affecting realty in another state or country, see 23 L. R. A. (N. S.) 924, and note; over suits affecting non-residents, see 23 lb. 1135. See "Courts," Century Dig. t§ 22-31; Decennial and Am. Dig. Key No. Series § 6. Sec. 1.] PROCESS. 911 CHAPTER XIII. PROCESS. Sec. 1. Introductory. JONATHAN WEST, qui tarn, v. RATLEDGE, 15 N. C. 31. 1833. Histor'g and Nature of Writs as Process hy Which an Action Was Com- menced, Variance Between the Writ and the Declaration. [Action of Debt in which, the plaintiff claimed $213.32 in his writ. The declaration contained two counts: (1) In debt for $213.32 under the statute aganist usury; (2) In debt for $160 under the same statute and for the same alleged usurious transaction. Verdict against the defend- ant for $160. Defendant moved in arrest of judgment because of vari- ances between the writ and the declaration. Motion overruled. Judg- ment against the defendant, and he appealed. Affirmed.] Daniel, J. In deciding the question, whether a variance be- tween the writ and the declaration can, after verdict, be taken ad- vantage of by the defendant in arrest of the judgment, it becomes necessary to make some observations upon the law and practice of the courts in England, as well as the law and practice of the courts of this state, and also on the decisions that have been made in this court on the subject. In England, when a person is about to com- mence a suit, the usual course of proceeding is, in the first place, to execute a warrant to an attorney of the court to have the writ issued, and the pleadings in the cause made up. The attorney then gives instructions for the original ; these instructions are contained in a paper called the praecipe, in which he sets forth the cause of action. Formerly, the practice was to take the warrant and the praecipe to the chancery, where the original writ was caused to be made out by the Master of the Rolls; which original recited the action as stated in the praecipe. The original is a mandatory let- ter in parchment from the king, tested in his name, and sealed with the great seal. It is directed to the sheriff or other returning officer of the county where the plaintiff intends to lay the venue, and is made returnable to the court either of the King's Bench or the Common Pleas, at Westminster. If the sheriff return on the original non est inventus, the original is then left on file in the court, and a judicial writ or process issues, called a special capias ad respondendum, which is grounded upon the original. If the sheriff return on the capias, non est inventus, the plaintiff may then issue an alias, and a pluries, and so on to outlawry, to com- pel an appearance by the defendant. When the defendant appears in court in consequence of the sers'ice of the original, or an arrest 912 PROCESS. {Ch. 13. on any process which issues upon it, the plaintiff then files his declaration, and serves a copy on the defendant, who defends either by demurrer or plea. If he pleads to the action, then the whole of the pleadings to the making up of the issue are completed in the superior court of Westminster. A nisi prius record is then made out and transmitted to the court of nisi prius, .or the assizes of the county where the venue is laid, that the issues may be there tried by a jury. "When a trial takes place, and a verdict is ren- dered, it is entered on the nisi prius roll, or some paper attached to it which is called the postea, and delivered to the party in whose favor the verdict is rendered, who returns it into the superior court, at Westminster, where the record belongs; and on notice being given to the adverse party, a motion is then made for judg- ment ; which, if no cause is shown to the contrary, is rendered by the court, upon M-hich issues the execution. In modern times the practice of commencing suit by original purchased out of chancery has been tacitly waived by the profes- sion. The practice is now, for the attorney to leave the praecipe and a memorandum of his warrant at the Filacer's office, and the Filazer thereupon issues a capias ad respondendum in the first in- stance, keeping the praecipe as instructions for the original, if such original should afterwards become necessary by the writ of error being brought after a judgment by default, on demurrer, or on plea of nul tiel record: for the want of an original is aided after verdict, by stat. 18 Eliz. c. 14. If a writ of error should be brought for the want of an original, in any of those cases where the defect is not cured by the statute of Elizabeth, the plaintiff may, by a petition to the Master of the EoUs, obtain an original and move the court, where the record is, to amend by adding the original, which is always granted; so that the record is complete, when, in obedience to the writ of certiorari, it is transmitted into the court of errors. The plaintiff in error will then have nothing in the record upon which he can assign errors, and will fail in his efforts to reverse the judgment. 1 Saund. 318, a ; Arehb. P. K. B. 73. By the rules of the common law great nicety and exactness were required in the proceedings and pleadings in a suit; small errors and inaccuracies were always sure to be fatal to the party making them; as for instance, in bailable actions, the declaration should always correspond with the writ in the names of the parties, and in the cause of action (Bingham v. Dickie, 1 E. C. L. R. 276 ; Archb. Prac. 68, 69, 124), and if there was a variance in these, or in the sum demanded, between the writ and the declaration, it would be fatal, Archb. 68. The legislature has from time to time endeavored to remedy what it considered an evil, and has passed several statutes of jeofails and for the amendment of the law, to prevent justice being strangled in a net of forms and technicalities. The legislature, further to aid the administration of justice, passed the statute 5 Geo. 1. c. 13 (1718). The statute is as follows: "An act for the amendment of writs of error, and for the further pre- venting the arresting or reversing of judgments after verdict. Sec. 1.] PROCESS. 913 ""Whereas great delay of justice hath of late years been occa- sioned by defective writs of error, which, as the law now stands, are not amendable: For the remedy whereof, Be it enacted, etc., that all writs of error wherein there shall be any variance from the original record or other defect, may and shall be amended and made agreeable to such record by the respective courts where such writ or writs of error shall be made returnable; and that where any verdict hath been or shall be given in any action, suit, bill, plaint, or demand, in any of his majesty's courts of record at Westminister, or in any other court of record within England or Wales, the judgment thereupon shall not be stayed or reversed for any defect or fault, either in form or substance in any bill, writ, original or judicial, or for any variance in such writs from the dec- laration or other proceedings : Provided, nevertheless. That noth- ing in this act contained shall extend or be construed to extend to an appeal of felony or murder, or to any process upon any in- dictment or presentment, or information of or for any offense or misdemeanor whatsoever." 5 vol. Brit. Stat. 43. If the aforesaid statute is in force in this state, it cures the de- fect in this ease arising from a variance between the writ and dec- laration. It becomes us now to inquire whether it is in force or not. When this country was first settled, it was foreseen that the establishment of courts of justice ^\'as absolutely necessary for the well being of the society of people who were about to inhabit it. By the fourth clause of the great charter, power is given to the lords proprietors, by and with the consent of the freemen or their delegates in general assembly, to pass laws and make constitu- tions, establish courts of justice, and appoint judges and magis- trates. The first judiciai-y system est-ablished in this state was under this charter. We learn from history. 1 Martin, 303, 304, and from the archives of the province, that there was a court of chancery held hy the governor and council, and a great court of common laiv jurisdiction held by a chief justice and associates^ and inferior courts of limited jurisdiction, called precinct courts, held magistrates. In the year 3728, the lords proprietors surrendered their power of governing the province into the hands of the king, who in the year 1730 sent out a governor, who wa.s empowered with the advice of the council, to call assemblies to exercise legislative powers according to former usage, and to establissh courts of jus- tice. I do not discover that any alteration was made in the judi- ciary system which had before existed, except that the governor and council were authorized to hold a court of errors. I learn from the 7th and 20th sections of the act of 1746, that the suitors in the general court commenced their actions by capias ad responden- dum, issued hy the clerk and signed iy the chief justice. Swan. 226, 228. The general court held its terms at Edenton. In the year 1746, the assembly passed another law for establishing courts of justice, and regulating the proceedings therein. By this act the court of chancery and the general or supreme court were per- manently fixed at Newbern. The general court was composed of a Remedies — 58. 914 PROCESS. [Ch. 13. chief justice and three associate justices. The courts of assize were to be held by the chief justice twice a year at the district court-houses of Edenton, Wilmington and Edgecombe; county courts with limited jurisdiction were established instead of the precinct courts. Writs issuing from the general court were re- turned into it at Newborn, and the pleadings and proceedings thereon were then carried on and transacted there, until the cause was at issue ; when by a ivrit of nisi prius, it was sent down to the proper place for trial according to the practice of the courts of Common Pleas and King's Bench, at Westminster. By the 40th section of the act, it is enacted "that all the statutes of jeofails which are now in force in England, are hereby declared to extend to and be in force here ; and that the same shall be duly observed by all judges and justices of the several courts of record within this province." The king, after the lords proprietors surrendered the powers of government into his hands, directed that all the provincial acts of assembly should be sent to him, and on revision by himself in council, if they were disallowed, they were to cease having any force. 2 Martin's Hist. 2. In the year 1754, the as- sembly passed another act concerning the judiciary, which was repealed by the king's proclamation. Davis, 167. The people having spread over a large portion of the province east of the mountains, it became necessary to establish an additional number of district courts. In the year 1768, the assembly passed a new court law dividing the province into six districts, and established a superior court of justice in each of said districts. This act was limited to five years. In the 45th section it is declared, that all the statutes of jeofails and amendments, which now are in force in England, are and shall be in force here. Davis, 872. This act went into operation ; for it was the only law passed before the rev- olution which gave the judges power to hold the superior courts at Hillsborough and Salisbury; and we know from history that the superior courts were held at both of those places before the revolu- tion. 2 Martin, 263. In the year 1773, the assembly re-enacted the court law which had just expired by efflux of time, containing the same clause relative to jeofails and amendments. A suspen- sion clause, was added restraining its operation until his majesty's pleasure should be known. A dispute arose between the king and the house of assembly, relative to the section in the act authorizing attachments to issue against the property of debtors who were not, and never had been, residents of the province. The house of as- sembly refusing to strike it out of the bill, the king thereupon re- fused to ratify the law. 2 Martin. 302. The revolution took place and the province was changed into an independent state. In the year 1777, the legislature passed a court law (Potter's Rev. e. 115), in which is to be found the following section (35) : "And be it enacted, that all the statutes of England and Great Britain for the amendment of the law, commonly called statutes of jeofails, and which were heretofore enforced in this territory by any act or acts of the general assembly under the late government, are hereby Sec. 1.] PEOCBSS. 915 declared to have continued and to be now in full force in this state, and shall be duly observed by all judges and justices of the several courts of record within the same, according to the true in- tent and meaning of the said statutes, unless where the same are or may be altered by this or any other act." We know that the acts of 1746 and 1768 had been in force in this territory, under the provincial government. It would seem then upon this review, that the statute of jeofails and amendments referred to and en- forced by these acts of the colonial legislature, including the Stat, of 5 Geo. 1, are as completely embraced within this legislative en- actment as though they had been incorporated into the act of 1777, and if so, they must be "duly observed by all the judges and justices of the several courts of record within the same. " . . [After a full review of the authorities the conclusion reached is that, after verdict, no variance between the writ and the declara- tion will authorize the court to arrest the judgment.] See "Pleading," Century Dig. §§ 146-148; Decennial and Am. Dig. Key No. Series § 74; "Bail," Century Dig. § 81. WIBRIGHT V. "WISE, 4 Blackford, 137. 1835. Nature of the Writ. Form. Defects. Objections How and When to Be Made and How and When Waived. [Motion by the defendant to quash, the writ. Motion sustained, and the plaintiff appealed. Reversed. ' The writ was a capias ad responden- dum. The concluding clause or teste of the writ was as follows: "Wit- ness Robert N. Williams, clerk of Madison circuit court, and its seal hereto affixed at Andersontown, the 22nd day of July, 1835." The ground of defendant's motion to quash was, that the cleric had failed to sub- scribe his name at the conclusion of the teste. In opposition to the defendant's motion it was insisted: (1) That it was too late to object to the writ because it was claimed the defendant had theretofore en- tered an appearance; (2) That the writ was sufficient notwithstanding the alleged defects therein.] Stevens, J. It may be observed that the common law doctrine as practiced in England respecting process is, in general, applica- ble to our writs unless altered by statute ; and that, therefore, mere errors in our writs are cured by the appearance of the defendant. But there is a distinction between errors that only render the process voidable, and defects that render it void. Simple appear- ance does not cure the latter. Process in England, and our writs answering to those called process in England, form no part of the record ; errors in them cannot be assigned for error ; hence the only remedy is to move to set aside the proceedings; and that should be done before appearance, unless the writ is wholly void. In the latter case, a mere appearance will not cure the defect. The ap- pearance, however, here spoken of, does not simply mean the com- ing of the defendant into the court-house: it means an appear- ance to the action, such as perfecting bail, or taking some step in the action towards the defense. The party must come before the 916 PROCESS. [Ch. 13. court, or he can make no objection to the writ, and this he cannot do uatil the writ is returned. The rule appears to be this : The motion must be made as early after the return of the writ, as is convenient and practicable according to the rules of the court, and before any step is taken in the defense. The taking a copy of the declaration out of the office, has been decided to be such a step as will cure errors in process. 3 Bl. Com. 287, n. 10; 1 Sell. Pr. 108. In this case, the party appears to have made his motion in due time ; that is, there is nothing of record to show or even raise a presumption to the contrary. The question then is, should the motion have prevailed? The appellant appears to rest his case upon the common law. The common law will- not sustain him. At common law, his writ would have to be tested in the name of the president judge, and then be sealed with the seal of the court, and officially signed by the clerk. The clerk is the keeper of the seal of the court at common law; and when he seals process, he should officially sign it to show that it was sealed at the proper mint of justice. This writ at common law is erroneous. In the state of New York, the common law form exists as to the teste of writs. They are tested in the name of the chief justice ; but the clerk must put the seal of the court to them, and officially sign them ; and it is error if he fail to sign his name. Pepoon ats. Jenkins, Col. & Caines' Cas. 60. Our statute, how- ever, has altered the case. By the 6th section of the act organiz- ing circuit courts. Rev. C. 1831, p. 140, it is enacted, that all writs issviing out of these courts, shall bear teste in the name of the clerk of the proper courts, etc. The clerk, in issuing the writ now be- fore us, appears to have substantially complied with that provi- sion of the statute. The teste is in his handwriting and is these words: "Witness Eobert N. Williams, clerk of the Madison cir- cuit court," etc. This appears to us a sufficient signing and a suf- ficient te.ste. It is tested in due form as required by the statute; and as that teste contains the name and official character of the clerk in his own handwriting, it appears to be sufficiently signed to show that it issued from the proper mint of justice ; and that is all that can be required. Judgment reversed. See "Appearance," Century Dig. §§ 118-143; Decennial and Am. Dig. Key No. Series § 24; "Process," Century Dig. § 32; Decennial and Am. Dig. Key No. Series § 37. The principal writs in use under the common law practice are here inserted : (The seal of the court was essential at common law. but in North Carolina it was essential only when the writ issued to another county.) Original Writ. — Trespass on the Case. State of North Carolina, To the Sheriff of — county, Greeting: We command you, that you take the body of C. D. (If to he found In your county), and him safely keep, so that you have him before the jusr Sec. 1.] PROCESS. 917 tices of our court of Pleas and Quarter Sessions, to be held for the county of , at the court-house in . on the fourth Monday of May next, then and there to answer A. B. of a plea of trespass on the case, to his damage one hundred and twenty-five dollars. Herein fail not, and have you then and there this writ. Witness, G. H., clerk of our said court, at office in , the fourth Monday of February, 1850, in the seventy-fourth year of our Independ- ence. Issued the 3rd day of March, 1850. G. H., Clerk, etc. Writ in Debt. Strike out the words in italics in the foregoing, and insert, "of a plea that he render unto him the sum of two hundred dol- lars, which he owes to, and unjustly detains from him, to his damage fifty dollars." Writ in Debt on Two Bonds. Strike out the words in italics in the first form and insert, "of a plea that he render unto him the sum of three hundred dollars, and the further sum of four hundred dollars, which he owes to, and unjustly detains from him, to his damage seventy- five dollars; " or simply, "of a plea that he render unto him the sum of seven hundred dollars, which he owes to, anfl unjustly detains from him, to his damage seventy-five dollars." Writ in Debt Qui Tarn. Strike out the words in Italics in the first form, and insert, "who sues as well for the state of North Carolina, as for himself, in this behalf, of a plea, that he render unto the said state, and to the said A. B., who sues as aforesaid, the sum of one hundred dollars, which he owes to, and unjustly detains from them." Writ of Covenant. Strike out the words in italics in the first form, and insert, "of a plea of a breach of covenant, to his damage five hun- dred dollars." Writ of Detinue. Strike out the words in italics in the first form, and insert, "of a plea that he render unto him one bay horse of the value of four hundred dollars, and one wagon of the value of two hun- dred dollars, which he unjustly detains from him, to his damage one hundred and fifty dollars; " or insert, "of a plea that he render unto him one bay horse and one wagon of the value of six hundred dollars, which he unjustly detains from him, to his damage one hundred and fifty dollars." Writ of Trover. The same as Trespass on the Case. Writ of Trespass Vi et Armis. Strike out the words in italics in the first form, and insert, "of a plea of trespass vi et armis, to his damage five hundred dollars." Writ of Trespass Quare Glausum Fregit. Strike out the words in italics in the first form, and insert "of a plea of trespass quare clausum fregit to his damage two hundred dollars." Writ of Debt Against One Defendant as an Individual, and Another as Executor. Follow the first form down to and including the words "fourth Monday of May next," and then proceed, "and that you summon E. F., executor of G. H., to be before said justices at the time and place aforesaid; then and there to answer A. B. of a plea that they render unto him the sum of five hundred dollars, which the said C. D. owes to, and unjustly detains from him, and which the said E. F., executor of G. H., unjustly detains from him, to his damage fifty dollars," etc. The above forms are taken from Eaton's Forms, pp. 44-47. See lb. pp. 40-43, for general directions as to writs. Replevin. "The action of replevin, though entertained in the superior courts, is not commenced there; and the writs of summons and capias, provided by 2 Will. 4, c. 39, for the commencement of personal suits in the superior courts, are consequently not applicable to this action. A replevin is entertained in the superior courts by virtue of an authority which they exercise of removing suits, in certain cases, from an Inferior jurisdiction, and transferring them to their own cognizance. Where goods have been distreined, a party making plaint to the sheriff may 918 PROCESS. [C7i. 13. have them replevied, that is, re-delivered to him, upon giving security to prosecute an action against the distreiner, for the purpose of trying the legality of the distress; and, if the right be determined in favor of the latter, to return the goods. The action so prosecuted is called an action of replevin, and is commenced in the county court. From thence it is removed into one of the superior courts by a writ either of recor- dari facias loquelam, or accedas ad curiam. In form, it is an action for damages, for the illegal taking and detaining of the goods and chattels." Stephen's Pleading, 19. In modern times the writ of Replevin was regulated by statute in the several states, and the writ in use in North Carolina prior to the adop- tion of the Code practice was according to Eaton's Forms, p. 48, as fol- lows: State of North Carolina, To the Sheriff county. Greeting: Whereas, A. B. hath made oath before the clerk of the superior court of law of said county, that a certain bay horsei has been in his lawful possession within three years next preceding the date hereof, and that lie has been deprived of thg possession of said horse by the defendant, C. D., without the consent or permission of him, the said A. B., and that the said horse is of the value of four hundred dollars, and the said A. B. hath also given bond with good security before the said clerk, in the sum of eight hundred dollars, payable to the defendant, and condi- tioned to perform the final judgment on this writ, and hath also given bond with good security for the prosecution of this suit. We therefore command you, that you forthwith take said horse into your custody, if to be found in your county, and deliver him to the said plaintiff, unless the said defendant shall execute and deliver to you a bond, with good security, in the sum of eight hundred dollars, payable to the said plain- tiff, and conditioned to perform the final judgment which shall be ren- dered in this case; and if the said defendant shall execute and deliver to you a bond as aforesaid, you are to return said bond with this writ. We further command you that you summon the said C. D., if to be found in your county, to be and appear before the honorable the judge of our said court, at the court-house in , on the third Monday after the fourth Monday in March next, then and! there to answer the said A. B. of a plea of taking and unjustly detaining the said horse, to his damage four hundred dollars. And have you then and there this writ. Witness, E. F., clerk of our said court, at office in . the third Monday after the fourth Monday in September, 1844, and in the sixty- ninth year of our Independence. E. F., Clerk. Issued the 1st day of January, 1845. Writ of Waste. Strike out the words in italics in the first form above given, and insert, "of a plea, why in the houses, lafld and woods, in the county of which he holds and is legally entitled to for the term of his natural life, under the devise of J. H., he has made waste, spoil and destruction, to the disinheriting of the said A. B., against the provisions of law, and to the damage of the said A. B. of one thousand dollars." Sec. 2. Subpoena in Equity. ARCHIBALD v. MEANS, 40 N. C. 230. 1848. Process in Equity. [Bill in equity. Demurrer by defendants. Demurrer overruled. De- fendp,nts appealed. Reversed. The facts appear in the beginning of the opinion.] RuFPiN, C. J. The merits of the controversy between these par- ties cannot be determined in the present state of the pleadings. Sec. 2.] PROCESS. 919 If any person can be deemed a defendant to the suit, a decisive ob- jection to the bill is, that it is against three married women, with- out making the husband of either of them a defendant. In the title of the bill it is said to be "against Margaret, the wife of Cor- nelius McKee, " etc., but not to be against McKee himself, or the other husbands. Of course, as the husbands are necessary parties to the account, so as to render it obligatory upon all interested in the estate, the court ought not to entertain the bill and order the cause to an account without them. But the truth is, that the hill does not properly make any person a defendant. The bill is en- titled, a bill against certain persons ; but the title is no part of the bill, whether it precede the statement of the bill, or be written on the back of it. The stating part of the bill ought to contain the case of the plaintiff, showing his rights, and the injury done to him and by whom it was done; and, even then, the persons thus mentioned in the bill, as the authors of the wrong complained of, are not thereby made defendants, but only those against whom process of subpoena is prayed, as the means of compelling their appearance, or under our statute, publication in its stead. Coop. Ch. PL 16 ; Beams Bl. PI. 148. In the present bill no persons are named in the stating part of the bill as the heirs or next of kin of the intestate; but it is only stated that "the defendants" are the children of their deceased brothers and a sister of the intestate, and as such are his heirs at law and next of kin. In like manner in the prayer for process, it is against "the defendants," without naming any person. So that in truth there is strictly no suit prop- erly constituted, in which the court ought to have decreed, or this person, John W. Means, ought to have demurred. The decree was therefore erroneous and must be reversed ; but as we have observed that this is not an uncommon mode of stating a case and making parties in some parts of the state, and the appellant might have availed himself of the defect more properly by objecting to ap- pearing, instead of demurring, the court is not disposed to give costs in either court. We cannot, however, but express the hope, that more attention will be paid to the framing of the pleadings in an orderly manner, and, to that end, that recourse will be had to the books of precedents of established authority, rather than to the loose and imperfect productions of the circuit. Decree accord- ingly. The following form of Subpoena in Equity Is taken from Eaton's Forms, 589: The State of North Carolina, To C. D. of county : We command you, that laying aside all other matters and excuses, you be and appear before us in our Court of Equity to be held for the county of , at the court-house in , on the third Monday after the fourth Monday of March, 1858, to answer to such things as shall then and there be alleged against you by A. B. and further to do and receive what our said court shall direct in this behalf, upon pain of an attachment Issuing against your person, and such other process for contempt as the said court shall award. Witness, E. F., clerk and master of said court, at office In , the third Monday after the fourth Monday of September, 1857. E. F., C. M. E. 920 PROCESS. [CJi. 13. Issued March 1st, 1858. For the form and requisites of a Subpoena in Equity in the Federal courts, see Loveland's Forms, p. 501, and Rules XI-XX of the Rules of Practice for the Courts of Equity of the United States, prescribed by the Supreme Court of the United States, to be found in 3 Dan. Ch. Prac. *2375, 2 Foster's Fed. Pac. 1390, Shiras's Eq. Prac. 143. See "Equity," Century Dig. § 322; Decennial and Am. Dig. Key No. Series § 139. Sec. 3. Mesne Process. FERGUSON ads. THE STATE ex rel. REEVES, 31 N. J. L. 289, 291. 1865. Mesne Process Defined. [Action against Ferguson for a mandamus. There was judgment against Ferguson for costs, inter alia. Among the items taxed in the bill of costs was a charge for serving the writ of mandamus. The law allowed to the sheriff, among other fees, a fee on any Mesne Process. Ferguson moved to retax the costs and strike therefrom this item. Re- fused. The question is: What is meant by mesne process?] Haines, J. . . The charge for sheriff's fees for serving the writ of mandamus should be allowed. It may, it is true, be served by a person not an officer ; but generally the seirvice by an officer is better. It is more authoritative, and less likely to be dis- regarded or resisted. The true policy as tending to the mainte- nance of peace and good order, is to have such vmt served by an officer. The charge, too, comes fairly within the terms of the fee bill, which allows fees to the sheriff "for every attachment, summons, capias ad respondendum, declaration in ejectment, or any mesne process issuing out of the supreme court. ' ' By the term m.esne process, is generally understood any writ issued ietween the original writ and the execution. By original process, the first writ at the common law, is not meant the first process, under our statute. Such original vnit is not used here. All our writs preceding the execution are mesne process. In Chitty's Practice, 140, it is said, that by mesne process is meant the writ or proceeding in action to summon or bring the defend- ant into court. . Bill retaxed. Mesne process is that which is issued between the original and the final process. Bouv. Law Die. "Mesne." See to same effect, Heard's Civil PI. (Student's Series) 10. See "Costs," Century Dig. § 701; De- cennial and Am. Dig. Key No. Series § 176; "Mesne Process," Words and Phrases, vol. 5, pp. 4495, 4496. Sec. 4. Arrest. Common and Speciai, Bail. Appearance. LEWIS v. BRACKENRIDGE, 1 Blackford, 112, 114. 1821. Evolution of Arrests in Civil Actions. Shameful Oppression ty Im- prisonment for Del>t. Affidavit. [Lewis sued Oliver, and Brackenridge became special bail tor Oliver. Lewis instituted proceedings against Brackenridge to enforce his liability as such bail. Thereupon Brackenridge moved to set aside the order of bail in the original suit, for want of a sufficient affidavit, and because Sec. 4.] PROCESS. 921 Lewis had given Oliver a stay of execution for five months which, Brackenridge claimed, exonerated the bail. The judge set aside the order of bail, and Lewis carried the case to the supreme court by writ of error. Reversed. There was a petition to rehead but the former rul- ing was affirmed. Only a part of the opinion on the petition to rehear is here inserted.] Blackfoed, J. By the common law no man could be arrested in actions upon contract. By a variety of statutes, the law in England was entirely changed, and in process of time every man in such actions became liable to imprisonment without redress. Perhaps the common law was too lenient for a commercial people ; but the statute law certainly became shamefully oppressive. These evils, however, have been long since remedied. By the statutes of Henry VI, of Eliz., and more especially of Geo. I, the personal liberty of the debtor and the right of the creditor have been carefully attended to. We have a statute regulating arrests in civil cases, somewhat similar to that of Geo. I, and indeed they may be considered substantially the same as to affidavits for bail in cases where by our law such affidavits are required. In actions founded on tort, as trespass, etc., no particular sum can possibly be sworn to. In such case there must be a positive affidavit of facts stated so much at large, and with such precision, that the court or judge in making the order, may be able to deter- mine the quantum of the bail. In actions on contracts, the affida- vit, whether made by the plaintiff himself or by a third person, must show there is at the time of suing out the writ an existing debt then actually due, for which an arrest may lawfully be made. It should be positive as to the sum due, and not rest on belief, or left to be collected by inference. Thus, when the affidavit was as the deponent verily Relieves, it was adjudged insufficient. Str. 1226. So where the affidavit depends upon a reference to further evidence, it is bad, as if it sets out the sum to be due, as appear.s by an account stated under the defendant's own hand, 1 "Will. 121, or as appears by an agreement dated such a day. Burr. 1447. This doctrine is settled by many adjudications. There is one case which was cited in support of the affidavit in the cause before us, that certainly looks another way. Maultley v. Richardson, Burr. 1032. There the affidavit was that the defendant was in- debted to the plaintiff in such a sum, as he computes it. The au- thority of this decision was doubted by Justice Buller; 1 D. & E. 717, and has since been expressly denied to be law. 4 Taunt. 154. It is time to forget it. To this general rule that the affidavit must be positive as to the real amount due, there is an exception in favor of executors, administrators, and assignees. They are per- mitted from the nature of their situation to swear to their belief. Burr. 1982, 2283. The affidavit must be filed in the clerk's office, or with the judge making the order, before the arrest, that it may be in the custody of the law ; for the offender, in case it is false, ■will be subject to an indictment for perjury, and to an action for damages, by the party injured ; and one good reason why so much certainty and precision in the affidavit are required, is, that per- 922 PBOCESS. [Ch. 13. jury may be clearly assigned on it, if it proves untrue. The sum fixed by order of a judge, or specified in the affidavit, is endorsed on the writ, and the direction of the clerk, or fiat of the judge re- quiring bail, is in all cases subject, of course, to control of the court. Where the process is returnable, upon proper application, made in due time, the plaintiff may be required to show the cause of action and of arrest ; if this is prima facie sufficient, and the de- fendant, without going into the merits, cannot show himself le- gally excused from the arrest, the rule to show cause w\\\ be dis- charged. No supplementary or counter affidavits should be intro- duced, nor any evidence relative to the merits of the cause, than that which, according to the statute, was produced to the clerk or judge to procure the endorsement for bail on the writ. When this case was under consideration at last term, we did not determine as to the validity of the affidavit, because, admitting it to be as de- fective as the defendant wished it to be considered, our opinion was, that the objections were made entirely too late. We think so yet. An affidavit to hold to bail is a component part of the proc- ess, used for the purpose of bringing the defendant into court. Advantage can only be taken of any irregularities or defect in it by application to the court in the first instance. Whenever the defendant regularly appears to the action, or voluntarily does an act adopting the process, the object is then accomplished for which the affidavit was made and the writ issued. No objection can after- wards be made to the validity of the one or the other. 7 D. & E. 375 ; 1 B. & P 132 ; 1 East, 18, 81, 330. This doctrine is not inter- fered with by our statute. See Ex parte Hollman, 79 S. C. 9, inserted at ch. 6, § 3 ante; and Long V. McLean, 88 N. C. 3, inserted at ch. 11, § 1, ante. See "Appear- ance," Century Dig. § 125; Decennial and Am. Dig. Key No. Series § 24; "Arrest," Century Dig. §§ 56, 71; Decennial and Am. Dig. Key No. Se- ries §§ 28, 32. Sec. 5. When is a Weit Issued. HAUGHTON v. LEARY, 20 N. C. 14. 1838. 'Writ Signed By the Clerk in May But Not Delivered to the Sheriff Until July. [Action of assumpsit. Plea of set-off. Judgment disallowing the set-oft. Defendant appealed. Affirmed. Only a part of the opinion is here Inserted. The clerk signed and issued the writ in May, but it was not placed in the sheriff's hands until July 21st. On July 8th the defendant acquired, by assignment, certain notes made by the plaintiff, which notes consti- tuted the set-off in his plea. The question presented is: "When is a writ issued and an action commenced?] RuFFiN, C. J. In our opinion the defendant is not entitled to the set-off under either plea. The first is, that the notes were en- dorsed to the defendant before and at the commencement of this suit. This is not true in point of fact. The assignment was on Sec. 5.] PROCESS. 923 the 8th of July and the suit, we think, was commenced on the 8th of May preceding, on which day the writ is dated, and as stated in the case, truly dated and filled up. The suing out the writ from the proper officer, or purchasing it, as it is called sometimes, is so universally deemed the bringing suit, that no exception is recol- lected by the court. It is unquestionably so within the statute of limitations, which uses the very words "that all actions shall he commenced or brought within the time and limitation expressed, and not after." While the teste of the writ on the one hand is not the commencement of the suit, for the benefit of the plaintiff; so on the other, the service of it, or its delivery to the sheriff, or any such thing is not requisite to the commencement of the suit, for the benefit of the defendant : but only getting the writ — im- petratio brevis. Johnson v. Smith, 2 Burr. 950. There are many eases to that effect. The form of pleading also establishes it. The constant form is, "that the defendant did not assume within, etc., ante impetrationem brevis. " Why? Because obtaining the writ, sealed and complete in form, is in fact and law the commencing suit. If this standard were departed from, it would be altogether \mcertain what would amount to bringing suit — a point that can- not be remaining to be settled at this day. The plaintiff has pro- ceeded on that very writ, and brought the defendant into court under it as the leading process in this action. Its date would de- termine the commencement of the suit in reference to the statute of limitations, if the defendant had pleaded it. For the like rea- sons, it determines it for the purposes of the present plea. Judgment affirmed. See "Action," Century Dig. §§ 726, 727; Decennial and Am. Dig. Key No. Series § 64. HANCOCK V. RITCHIE, 11 Ind. 48, 51-53. 1858. Writ Signed By the ClerTc in April But Not Delivered to the Sheriff at All. Defendant Appeared Voluntarily in September. [Action by Hancock to recover upon two promissory notes. The writ issued April lath, 1853, but was never delivered to the sheriff, and on September 26th, 1853, the defendant entered an appearance and filed an answer. The rights of the parties depended upon when the action was commenced. The plaintiff insisted that it commenced on Aril 15th, and the defendant insisted that it did not commence until September 26th. The judge ruled with the defendant, and rendered judgment against the plaintiff, from which he appealed. Affirmed.] WoRDEN, J. . . Was the suit commenced on the 15th of April, 1853, of not until the appearance of the defendant in Sep- tember afterwards? The statement in the record that the writ issued, does not, we think, imply that it was placed in the hands of the sheriff for service. It might have been delivered by the clerk to the plaintiff or his attorneys; but the inference is, that it re- mained in the clerk's office, as he copies it into the record. We are of opinion that a delivery of the writ to the sheriff for service, 924 PROCESS. [Ch. 13. or something equivalent to such delivery, ivus necessary, in order that the action might be deemed to have been commenced. In the case of Carpenter v. Butterfield, 3 John. Cas. 146, the writ had been issued and placed in the hands of the officer, who went to arrest the defendant; but the defendant avoided arrest until he procured the assignment of a note, for the purpose of setting it up as an offset to the plaintiff's claim. Held, that the suit was commenced before the note was assigned. This ease is made the basis of what is said in reference to this matter in Clark v. Redman, 1 Blackf. 379. In this last case, the point was not whether the writ must be delivered to the officer, but whether the filing of a declaration was the commencement of the suit ; and the court say that, ' ' in New York it has been decided, that the impe- tration of the writ, as to every material purpose, is the commence- ment of the action," citing the case of Carpenter v. Butterfield, supra. In Bronson v. Earl, 17 John. 63, it was said by the court, that "suing out the writ has been held, in several cases, by this court, to be the commencement of the suit ; and although there may be some uncertainty or ambiguity in the term 'suing out the writ,' yet there can be no doubt that the delivery of the writ to the proper officer or leaving it at his house as in this case for the pur- pose of being executed, is to be deemed the actual commencement of the suit. ' ' In Ross v. Luther, 4 Cow. 188, it was also held, that the suit could not be considered ^s having been commenced until the actual delivery of the writ to the officer, and in Underwood v. Tatham, 1 Ind. 276, which was an action of replevin, where a de- mand was necessary before bringing suit, and none was made until the writ had been delivered to the officer, it was held that the issuing of the writ to the sheriff (thereby implying its delivery), was the commencement, of the suit. These authorities, we think, settle the question. As the writ was not delivered to the sheriff for service we do not determine whether if it had been delivered in a case like the present where it was not served no property being attached and no one siunmoned as garnishee and the defendant not notified, the suit would be eon- •sidered commenced until the appearance of the defendant. The mere making out of a writ without a delivery to the officer for serv- ice, either actual or constructive we think leaves the case so far as this question is concerned, as if no writ had been issued, and the case falls within the principle determined in the case of The State V. Clark, 7 Ind. 468. We are of opinion that the suit cannot be considered to have been commenced until the appearance of the defendant in September, 1853, and that, therefore, the provisions of the code of 1852 are applicable' to the proceedings — that code having taken effect May 6, 1853. . . . Judgment affirmed. See "Action," Century Dig. §§ 726, 727; Decennial and Am. Dig. Key- No. Series § 64. Sec. 5.] PROCESS. 92» WEBSTER V. SHARPE, 116 N. C. 466, 471, 21 S. E. 912. 1895. When is a Writ "Issued" and an Action "Commenced,?" [Action for slander. Plea of statute of limitations. Verdict and judg- ment against the plaintiff, and he appealed. Affirmed. The summons bore date May 30th, 1893. The defendant contended that it was not issued until July 10th, 1893. If the defendant's contention was correct the action was barred.] FuRCHES, J. . .If the summons was issued at the time it bears date, it was in time. But, if it was not issued until the 10th of July, it was not in time, and the statute of limitations was a bar. The presumption is that it was issued at the time it bears date, and the burden is on the defendant to show that it did not. To do this, defendant introduced the clerk and the sheriff, and their testimony tended to show that the summons did not issue at the time it bears date, and that, as a matter of fact, it was not is- sued until the 10th of July, 1893. An action is conmienced by issuing a summons. Code, § 199. And an action is commenced when a summons is issued against a defendant. Id. § 161. This involves the question as to what is meant by the word "issue," and we are of the opinion that it means going out of the hands of the clerk, expressed or implied, to be delivered to the sheriff for serv- ice. If the clerk delivers it to the sheriff to be served, it is then issued ; or if the clerk delivers it to the plainitff, or some one else, to be delivered by him to the sheriff, this is an issue of the sum- mons; or, as is often the case, the summons is filled out by the attorney of plaintiff, and put in the hands of the sheriff. This is done by the implied consent of the clerk, and, in our opinion, con- stitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons, as provided for in the Code. Nor would the fact that a summons being filled up and held by the clerk for a prosecution bond (as the evidence in this case tends to show was the fact) constitute the issuing of a summons, until the bond is given, or at least until it goes out by the consent of the clerk for the purpose of being served on the defendant. This being so, we see no error in the judge's charge on the qustion as to when the summons is- sued and the statute of limitations. Judgment affirmed. To the same effect, see Smith v. Lumber Co., 142 N. C. at p. 30, 54 S. E. 788, et seq.; 32 Cyc. 425. If the summons be delivered to the sheriff by the clerk or justice directly — there teing no intermediary — the day of such delivery to the sheriff is the day of the issue. Smith v. Lumber Co., supra. See "Limitation of Actions," Century Dig. §§ 529, 530; Decen- nial and Am. Dig. Key No. Series § 119. '926 PROCESS. [Ch. 13. Sec. 6. Summons Under the Code Practice. "WILSON & SHOBBR v. MOORE et als., 72 N. C. 558. 1875. Common Law Writ. Subpoena in Equity. Summons Under the Code. Variance Between the Process and the Complaint. [Motion by the defendants to strike out the complaint in a civil ac- tion. Motion allowed, and plaintiffs appealed. Reversed. Three grounds were assigned by the defendants in support of the motion: (1) That "the summons commanded the defendants to answer the com- plaint of Wilson & 8hol}er alone," while the complaint was by Wilson & Shober and all other creditors of the Bank of North Carolina; (2) The summons was against the defendants Individually and as ex- ecutors, while in the complaint they were charged not only as individ- uals and executors but as trustees and agents also; (3) The summons concluded with a demand for tho relief demanded in the complaint, while the complaint demanded judgment for a specific sum due by con- tract and for such other and further relief, etc. The plaintiffs insisted that these grounds were not sufficient to au- thorize the granting of defendants' motion; and made a counter motion for leave to amend the summons, should the judge deem the first or second grounds assigned by the defendants sufficient to justify a dis- missal. Motion refused; but the court intimated that plaintiffs might amend their complaint if they chose to do so. Plaintiffs declined to amend the complaint.] Bynum, J. If this were an action at common law, begun by general process, the plaintiff might have declared qui tam, or the •defendant might have been declared against in his representative character. But the rule does not hold e converso, for if the process is, to answer the plaintiff qui tam, and the declaration is in his name only, the variance would be fatal. The rule was, that where the process was special, that is to answer the plaintiff suing in a particular capacity or calling upon the defendant to answer in some particular capacity, the declaration must conform thereto. But where the process is to answer generally, the declaration may be particular, and if against the defendant in several characters it does not contradict the general process, and is no variance. 1 Tidd's Prac. 450. In those cases where there was a variance between the writ and the declaration, the rule was. not to move to set aside the declara- tion, as was done here, and for which there seems to be no prece- dent, but the motion was to abate the %rrit. The defendant craved oyer of the writ, and if, upon reading it, the writ contained any conditions not contained in the declaration, he took advantage of the variance by plea in abatement of the writ. 3 Bl. Com. 299; 2 Lil. Abr. 629. But this indulgence having been abused and made an instrument of delay, the courts of common law made a rule that oyer should not be granted of the original writ, which rule had the effect of abolishing pleas in abatement founded on facts which could only be ascertained by the examination of the writ itself. In consequence of this rule, it was afterwards held, that if the defendant demanded oyer of the writ, the plaintiff might proceed as if no such demand had been made. Doug. 227, Sec. 6.] PBOCESS. 927 228 ; Bro. Abr. tit. Oyer, 692 ; 2 Ld. Eaym. 970 ; 2 Wils. 97 ; Co. Inst. 320 ; Gilbert C. P. 52. So if this was an action at common law, the defendant's motion would fail: 1st. because the matter alleged does not constitute a variance; 2nd. if it did, it could ■only be used as ground of plea in abatement of the writ, and not of the declaration. But under our new constitutwn and code we have adopted sub- stantially the practice and procedure of the courts of equity and not of the courts of common law. In equity the bill precedes the subpoena, which issues to bring the parties defendant into court. The prayer of the bill is not "Your orator, therefore, prays that he may have such and such relief;" but it is "to the end there- fore that the defendants may answer the interrogatories and that your orator may have the specified relief, may it please your honor to grant a writ of subpoena requiring the defendants to appear by a certain day and answer the bill, and abide by the decree of the court." Adams Eq. 309. The subpoena is used to ■designate and bring the parties into court only ; it neither speci- fies, as the old common law writ freciuently did, in what right the plaintiff claims relief, nor the right in which the defendant is sought to be charged. These matters are set forth in the bill only, and the subpoena points to the bill as containing the causes of suit which are to be answered. As then it is clearly not the office of the subpoena to specify the plaintiff's claim or the defendant's liability, there can be no such thing as a variance on that account ; and such a motion as the present is an unheard of proceeding in equity and would not there be tolerated. The only difference between tlie practice under the Code and in the court of equity is, that by the Code the summons does not follow, but precedes the complaint. "It shall command the sheriff to summon the defendant to appear at the next ensuing term of the superior court to answer the complaint of the plaintiff. ' ' Bat. Rev. eh. 17, sec. 2; C. C. P. sec. 73. In both courts its only opera- tion and office is to give notice of an action begun, the parties to it, and where the complaint will be filed. In our case, these purposes have been answered, and the defendants have had every privilege allowed by the regular course of the court. Their objections seem captious, and for the evident purpose of delay. The whole scope and design of the new code is, to discountenance all dilatory pleas, and to afford the parties a cheap and speedy trial upon the merits of their matter in controversy. To effect this end it is the duty of all courts to allow amendments in the liberal spirit clearly in- dicated in the code. C. C. P. sees. 128-136. There is error. Judgment reversed. The parties, plaintiff and defendant, must be named in the summons. A summons for "the heirs of A" will not do. Kerlee v. Corpening, 97 N. C. at p. 334. "We have no recollection of a proceeding at common law against unknown heirs. At common law or in equity, if heirs are required to be made defendants, it is the duty of the plaintiff to render them such by their proper names," therefore, a proceeding against "A and others unknown" will not answer the requirements of a statute 928 PROCESS. [Ch. 13. authorizing certain proceedings against non-resident heirs — they must be named. Powers v. Hurts, 3 Blacltf. at p. 231, inserted at ch. 14, post. See, also, Archibald v. Means, 40 N. C. 230, inserted at § 2 of this chap- ter. By special statutory provision in North Carolina, proceedings in partition may be conducted against non-resident persons whose names are unknown and cannot be ascertained after the exercise of due dili- gence. Rev. sec. 2490. Summons against feme covert in her maiden name. 19 L. R. A. (N. S.) 984, and note. See "Pleading," Century Dig. §§ 146-148; Decennial and Am. Dig. Key No. Series § 74; "Equity," Century Dig. § 759. STRAYHORN v. BLALOCK, 92 N. C. 292. 1885. Service of the Summons. [Special proceeding before the clerk of the superior court. The de- fendants entered a special appearance and moved to dismiss the pro- ceeding for alleged defects in the manner of service and in the sheriff's return. The motion was allowed by the clerk, and the plaintiff ap- pealed to the judge. The judge remanded the case to the clerk with directions — what the directions were is not disclosed in the reported case. Defendants then appealed to the supreme court. Both judge and clerk reversed. The facts appear in the opening of the opinion.] Merrimon, J. This was a special proceeding begun in the su- perior court, before the clerk thereof, on the 29th day of August, 1884, commanding defendants to appear on the 12th day of Sep- tember, 1884. The summons was returned September 5th, 1884. with the following endorsement: "Received 188 — . Served September 5th, 1884, on the defendants, D. W. Blalock. A. N. Blalock, J. R. Blalock and Rufas Blalock. Fee $2.40. J. R. Blalock, sheriff of Durham county." On the 12th day of September, 1884, the defendants entered a special appearance through their attorney, and moved to dismiss the action for three causes: (1) That the sheriff failed to endorse on the summons the day of its receipt by him; (2) That the de- fendants had not been served with summons ten days before the return day thereof; (3) That the endorsement of the sheriff on the summons was insufficient, in that it did not state the manner of service as required by law. The clerk granted the motion and en- tered judgment dismissing the proceeding. From this judgment the plaintiff appealed to the judge at chambers. At the hearing of the appeal, the defendants moved to dismiss it because the ac- tion of the clerk was in a matter resting in his discretion, andnot subject to review upon appeal. The motion to dismiss the appeal was denied by the judge, and the defendants excepted. The judge remanded the case with directions to the clerk, and the defendants appealed to this court. The action of the clerk was wholly erroneous. 1. The sheriff ought regularly to have noted on the summons the day of its de- livery to him, as required by the statute (The Code, sees. 200 and 280), but his failure to do so did not vitiate or render the sum- mons void. Such notation is not of the essence of the summons, nor of the service of it by the sheriff. Its purpose is to provide evidence convenient to fix the day the summons passed into the Sec. 6.] PROCESS. 929 hands of the sheriff for any proper purpose; 2. Nor did the fact that the summons was served less than ten days before the return day thereof render it void, or defeat the proceeding. As this was a special proceeding and the summons was returnable out of term, further time ought to have been allowed to the defendants to ap- pear, as suggested by this court in Guion v. Melvin, 69 N. C. 242, and Weiller v. Lawrence, 81 N. C. 65 ; 3. It would be more orderly and complete for sheriffs to make their returns of the service of the summons in actions with more fullness than simply to write on it "served," and the date of service, and sign the entry officially ; but this is sufficient — prima facie sufficient at all events. The statute (The Code, sec. 214) prescribes that "the summons shall be served in all eases, except as hereinafter provided, by the sheriff, or other officer, reading the same to the party or parties named as defendants, and such reading shall be a legal and suffi- cient service. ' ' This statute prescribes how the officer shall make service of the summons; it prescribes his duty as to the manner of discharging it. "When the sheriff returns that he has "served" the summons, this implies that he has discharged his official duty in that re- spect — that he has read it to the defendant. The term "served," as applied io a summons, ex vi termini, implies that it was read to the defendant named in it; except that in a case ufhere the stat- ute provides for other form of service, it means served according to law: in such connection it has a legal and technical meaning. Bouvier says, "to serve a summons, is to deliver it to him person- ally, or to read it to him." "Webster says, "To serve a writ — to read it to the defendant; or to leave an attested copy at his usual place of abode." In general, to serve a process is to read it, so as to give due notice to the party concerned, or leave an attested copy with him, or his attorney, or at his usual place of abode. IMurf . on Sheriffs, sec. 839. On the argument stress was laid upon that clause of the statute which provides, in respect to the service of the summons in special proceedings, that, "when executed, he (the sheriff) shall imm.ediately return the summons, with the date and manner of its execution," etc. It was insisted that the word "manner," implies how the service was made, and that it must be fully, descriptively and specifically set forth in the return. "We can see no substantial reason why such a literal interpretation should be given the term mentioned. It seems to us that when a sheriff uses a term or form of expression in his return, that implies that he served the summons as the statute directs, that the spirit and the purpose of the law are complied with. We do not mean to imply by what we have said, that the return of the sheriff is conclusive in respect to the manner of the serv- ice of the summons ; it is to be taken where he returns it "served," that it was served as the statute requires in that case, until the contrary is made to appear by motion supported by affidavits, or in some other proper and pertinent way. "We may add, that if the service of the summons had been insufficient, this was no cause for dismissing the proceedings. A motion to allow the sheriff to Remedies — 59. 930 PROCESS. [Ch. 13. amend his return might have been sustained, if the facts had war- ranted it. In any view of the matter, the plaintiff was entitled to an alias summons, if the return for any cause was insufficient. The exception based upon the supposed discretion of the clerk, not reviewable, has no foundation. The clerk has no jurisdiction of the proceeding; the superior court had jurisdiction of it, and the clerk had authority to do certain things in and about it, as and for the court, that stood as the action of the court, unless either party to the proceeding should except to it, and appeal to the judge of the court at chambers or in term, in which case the judgment of the judge would become that of the court, unless his judgment should, on appeal to this court, be reversed or modified, in which case, the judge would be required to accept and act upon the judgment of this court as the proper one in the superior court. Brittain v. Mull, 91 N. C. 498. The judge remanded the case to the clerk of the superior court with directions. This was error. The proceeding was already in the superior court ; the court could not remand the case to itself. The court ought to have reversed the judgment dismissing the pro- ceeding entered by the clerk as and for the court, and the clerk having entered the judgment of the judge as that of the court, ought to have proceeded according to law in the proceeding in the superior court. Brittain v. Mull, supra. The order of the judge must be set aside, and he will give judgment reversing that en- tered by the clerk, and the clerk having entered his judgment will proceed according to law. See "Process," Century Dig. §§ 164-187; Decennial and Am. Dig. Key No. Series §§ 132-138, 140. GREEN v. THE STATE, 56 Wis. 583, 585, 14 N. W. 620. 1883. Service of the Summons. What is Personal Service. [Green was convicted of assault and battery and carried the case to the supreme court by writ of error. Affirmed. Green assaulted a man and attempted to justify his conduct by showing that the person as- saulted was unlawfully trespassing on his lands. A road had been laid off across the land by certain judicial proceedings and the person as- saulted was in such road. Green, contended that the proceedings were void because he had not teen duly served with the summons or notice prescribed by the statute. The statute provided for a notice and added, "which notice shall be served personally, or by copy left with or at the usual place of abode of each occupant of such lands." The notice to Green was served by reading it to him, at his residence on the land, and by posting copies of the notice at three public places in the town. The judge ruled that the notice was legally served.] Cassody, J. . "Notice shall be served personally, or by copy left with or at the usual place of abode of each occupant of such lands." Sec. 1267. R. S. This clause provides three ways of serving the notice upon the occupant: (1) It may be person- ally served; or (2) it may be served by copy left with the occu- pant ; or (3) it may be served by a copy left at the usual place of Sec. 6.] PROCESS. 931 abode of the occupant. If the notice cannot be "personally served," except by leaving a copy thereof with the occupant, as contended by counsel, then the first method prescribed is the same as the second, and hence without any significance and might be rejected. Of course, leaving a copy with the occupant would be personal service, as ordinarily undei-stood, but it is not the only method of personal service. Here the legislature have expressly prescribed this method in addition to personal service, and have, therefore, pretty clearly shown that by declaring that the notice may be personally served, they meant to include something other and different than leaving a copy with the occupant. Such being the legislative intent, we are to determine whether such other and different method includes reading such notice to the occupant. In the late Dictionary of English Law, by Sweet, it is said : " In procedure, service is the operation of bringing the contents or effect of a document to the knowledge of the persons concerned. ' ' Burrill says: In practice, service is "judicial delivery or commu- nication of papers ; execution of process. ' ' One method of serving personally, as stated in Wade on Notice, cited by counsel for the plaintiff in error, "is by reading the notice to the person served. ' ' Sec. 1339. We must therefore hold that where the notice by the supervisors of the time and place of meeting and deciding upon the application for the laying out of a highway is served upon the occupants of the land through which such highway passes, by reading such notice to the persons served, the same is served per- sonally, within the meaning of see. 1267, R. S. The case is, in our opinion, clearly distinguishable from that class of cases cited by counsel, which were decided under statutes requiring notice to be given in writing, but without prescribing different modes of serv- ice in the language here employed. Judgment affirmed. In White v. Underwood, 125 N. C. 25, 34 S. B. 104, it is held that a person in jail may be served with summons, as the jail confers no privi- leges of sanctuary. The opinion says and shows that "this has been the settled rule of law and practice both in England and in this country for a long period of time." The same rule applies even where, by statute, one is rendered civiliter mortuus by imprisonment, unless the contrary he provided. "Indeed the decisions are uniform, that although the right of a convict to prosecute an action is suspended, and his property in some instances forfeited, still he may be sued and the suit against him may be prosecuted to judgment." In Connecticut it is held that if a defendant be in jail, leaving a copy at the jail is a compliance with the statute requiring service by "leaving a copy at the usual place of abode." The opinion cites cases from New York and Connecticut. See 21 L. R. A. (N. S.) 344, and note. A married woman can accept service, but an infant cannot. Nicholson V. Cox, 83 N. C. 44. An attorney cannot, under his general employment, accept service for his client. Starr v. Hall, 87 N. C. 381. As to service on infants, see Roseman v. Roseman, 127 N. C. 494, inserted at ch. 14, post; and for service on lunatics, see Stuard v. Porter, 79 Ohio St. 1, inserted at ch. 14, post. Inducing a party, by fraud, to come within the jurisdiction and there serving him with process. 12 L. R. A. (N. S.) 941. See "Highways," Century Dig. § 64; Ibid. "Process," §§ 76-82; "High- ways," Decennial and Am. Dig. Key No. Series § 30; Ibid. "Process," § 64. 932 PROCESS. [Ch. 13: WHEELER V. COBB, 75 N. C. 21. 1876. Waiver of Defects in Service. General Appearance. [Action to recover money, commenced by summons and an attacliment issued against the defendant's property. Tbe summons was served by publication. The defendant moved to dismiss the action for want of proper service of process. Motion allowed and plaintiff appealed. Re- versed. The docket showed that at the return term of the summons J. P. Whidbee's name was entered as attorney for the defendant, and that defendant was allowed until a certain day after the term to flle pleadings. Only that part of the opinion which bears upon the motion to dismiss, is here inserted.] Bynum, J. The service of the summons by publication is fa- tally defective, in that it does not conform to the requirements of the statute. The foundation and first step of service by publication is an affidavit that "the person on whom the summons is to be served cannot, after due diligence, be found within the state." Bat. Eev. ch. 17, sec. 83. This requirement was omitted in the affidavit, why, it is hard to conceive, as it was made by the attor- ney himself, who, as a prudent practitioner, should have had the statute before him in drafting the affidavit. For this court had re- peatedly held that the provisions of this statute must be strictly followed. Spiers v. Halstead, 71 N. C. 210. Everything neces- sary to dispense with personal service of the summons must ap- pear hy affidavit. The mere issuing of a summons to the sheriff of the county of Paquotank and his endorsement upon it the same day after it came to his hand, that "the defendant is not found in my county, " is no compliance whatever with the law, for it might well be that the defendant was at that time in some other county in the state, and that the plaintiff knew it, or by due diligence could have known it, and could have made upon the defendant a per- sonal service of the summons. Every principle of law requires that this personal service should be made, if compatible with rea- sonable diligence. But the case states that "the docket shows that at the return term of the court J. P Whedbee's name is entered as attorney for the defendants." and, at the same time, this entry was made upon the docket: "Defendants allowed until the first of December to file pleadings — order mutual to take depositions upon ten days' notice." There heing nothing in this appearance hy attorney qualifying it, the only reasonable construction is, that it was a general appearance — that is, for all purposes. A general appear- ance to an action cures all antecedent irregularity in the process, and places the defendant upon the same ground as if he had been personally served with process. Pollard v. Dwight, 4 Cr. 421 ; Taylor v. Longworth, 14 Pet. 172 ; 14 Pet. 293. It was, therefore, too late, at a subsequent term of the court, to raise the objection to the regularity of the service. The court will the more readily give this effect to an appearance entered vnthout qualification, because such objections, raised by the defendant himself, who ap- pears in court to make them, are generally for delay, and to avoid Sec. 6.] PROCESS. 933 an answer to the merits of the action. . . . Judgment re- versed. See Wibright v. Wise, 4 Blackf. 137, inserted at sec. 1, ante, in this cJiapter. "The purpose of the summons is to bring the parties into court, and give the court jurisdiction of them: that of the pleadings, to give jurisdiction of the subject-matter of the litigation and the parties in that connection — and this is orderly and generally necessary; but when the parties are voluntarily before the court, and by agreement, consent or confession, which in substance are the same thing, a judg- ment is entered in favor of one party and against another, such judg- ment is valid, although not granted according to the orderly course of procedure." Peoples v. Norwood, 94 N. C. at p. 172, citing Parley v. Lea, 20 N. C. 307; State v. Love, 23 N. C. 264; Stancill v. Gay, 92 N. C. 455. See further, as to the effect of a voluntary general appearance, 7 L. R. A. 511. . A general appearance, even before a referee, cures all ante- cedent irregularities in the process and its service. Roberts v. Allman, 106 N. C. 391, 11 S. E. 424; Heilig v. Stokes, 63 N. C. 612. See further, for general and special appearance, the next succeeding case. See "Appearance," Century Dig. §§ 91-102; Decennial and Am. Dig. Key No. Series § 20; "Process," Century Dig. §§ 108-120; Decennial and Am. Dig. Key No. Series § 96. SCOTT V. LIFE ASSOCIATION, 137 N. C. 515, 50 S. E. 221. 1905. General, Special, and Quasi Appearance. When, How, and for What Purposes, a Special Appearance May 6e Entered. [Scott obtained a final judgment against the defendant company, in May, 1902. At November term, 1904, the defendant company made a motion in the cause to set aside such judgment. The judge refused to set aside the judgment, and defendant appealed. Affirmed. The defendant was a non-resident corporation and the summons was served upon the Insurance Commissioner of North Carolina, pursuant to ch. 54, Laws 1899. At February term, 1902, judgment by default and inquiry was rendered against the defendant company. At May term, 1902, the inquiry was executed and judgment for damages was entered. At a subsequent term the defendant entered an appearance for the first time. The entry was made of record in the following terms: "The de- fendant, appearing for the purpose alone of making this motion, moves to set aside the judgment entered at May term, 1902, as irregular, and to find the facts set forth in C. W. Camp's affidavit, or to pass upon said proposed findings of fact." Only so much of the opinion as discusses general, special, and quasi appearance, is here inserted.] Walkbe, J. The ease was argued before us as if the defendant had entered a special appearance, and the plaintiff's counsel in- sisted tha,t, having done so, the defendant could not have the relief it seeks, nor could it appeal to this court ; citing Clark v. Mfg. Co., 110 N. C. Ill, 14 S. B. 518. The argument of both counsel was based upon a misconception of the true nature of the appearance entered by the defendant. In the first place, it does not, on its face, purport to be a special appearance. It is true, the defendant appeared solely for the purpose of moving to set aside the judg- ment; but, as such a motion involves only the merits of the case, and is not confined to the one objection that the court is without jurisdiction, it follows that an appearance entered solely for the purpose of making that motion is essentially a general appearance. 9M PROCESS. [Ch. 13. The test for determining the character of an appearance is the relief asked; the law looking to its substance, rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. 3 Cyc. pp. 502, 503. The question always is what a party has done, and not what he intended to do. If the relief prayed affects the merits, or the motion involves the merits — and a motion to vacate a judgment is such a motion — then the appear- ance is, in law, a general one. Id. pp. 508, 509. The court will not hear a party upon a special appearance except for the pur- pose of moving to dismiss an action or to vacate a judgment for want of jurisdiction, and the authorities seem to hold that such a motion cannot be coupled with another based upon grounds which relate to the merits. An appearance for any other purpose than to question the jurisdiction of the court is general. 2 Enc. of PL & Pr. 632. In Insurance Co. v. Robbins, 59 Neb. 170, 80 N. W. 484, the court says: "The effort of the company evidently was to try the matter, and obtain a judgment on the merits, while standing just outside the threshold of the court. This it could not do. A party cannot be permitted to occupy so ambiguous a position. He cannot deny the authority of the court to take cog- nizance of an action or proceeding, and at the same time seek a judgment in his favor on the ground that his adversary's allega- tions are false, or that his proofs are insufficient. 'A special ap- pearance,' says Mitchell, J., in Gilbert v. Hall, 115 Ind. 549, 18 N. E. 28, 'may be entered for the purpose of taking advantage of any defect in the notice or summons, or to question the juris- diction , of the court over the person in any other manner ; but filing a demurrer or motion which pertains to the merits of the complaint or petition constitutes a full appearance, and is hence a submission to the jurisdiction of the court.' Whether an ap- pearance is general or special does not depend on the form of the pleading filed, but on its substance. If a defendant invoke th(' judgment of the court in any manner upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general." See, also. Handy v. Ins. Co., 37 Ohio St. 366; Pry v. Railroad, 73 Mo. 123; Cohen v. Trowbridge, 6 Kan. 885; Briggs v. Humphrey, 83 Mass. (1 Allen) 373; Craw- ford V. Foster, 84 Fed. 939, 28 C. C. A. 576. "There are cases where the defendant may make a quasi appearance for the pur- pose of objecting to the manner in which he is brought before the court, and in fact to show that he is not legally there at all ; but. if he ever appears to the merits, he submits himself completely to the jurisdiction of the court, and must abide the consequences. If he appears to the merits, no statement that he does not will avail him ; and, if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not." Nichols v People, 165 111. 502, 46 N. E. 237 ; 2 Enc. PI. & Pr. 625. Sec. 6.] PROCESS. 935 We must hold, upon principle and authority, that the defend- ant has made a full appearance in the case, and will be bound in all respects by the orders and decrees of the court, even if not already bound by reason of the service of process. But the latter is in itself sufficient for that purpose. Biggs v. Ins. Co., 128 N. C. 5, 37 S. E. 955; Moore v. Ins. Co., 129 N. C. 31, 39 S. B. 637; Ins. Co. V. Scott, 136 N C. 157, 48 S. E. 581 ; Fisher v. Ins. Co., 136 N. C. 217, 48 S. E. 667. . . . See "Appearance," Century Dig. §§ 23-41; Decennial and Am. Dig. Key No. Series § 9. GRAHAM V. O'BRYAN, 120 N. C. 463, 27 S. E. 122. 1897. Special Appearance to Move to Dismiss. General Appearance, Upon Such Motion Being Overruled. Practice in Such Cases. [When this action was called for trial, the judge dismissed it and the plaintiff appealed. AflSrmed. The facts appear in the opinion. Only that part of the opinion which discusses the practice when a special appearance is entered for the purpose of moving to dismiss and such motion is overruled, is here inserted.] Clark, J. The judge held that the plaintiff could not recover, and rendered judgment in favor of the defendants for costs. The judgment must be affirmed, for several reasons. The defendants, entering a special appearance, moved to dismiss for want of legal service of sununons and for want of jurisdiction. The plea was overruled. The defendants having excepted, their subsequent ap- pearance did not bring them into court as a general appearance otherwise would have done. Farris v. Railroad Co., 115 N. C. 600, 20 S. E. 167. The record shows only a summons and a re- turn that the defendants "could not be found in the county." The appellees' counsel, however, admits that the record is de- fective, and that in fact the defendants were served by publica- tion, but contends that, being nonresidents, and no attachment having been served, the service was not a legal service. Upon that state of factS; the proposition of law is correct. Bernhardt v. Brown, 118 N. C. 700, 24 S. E. 527, 715 ; Long v. In.surance Co., 114 N. C. 465, 19 S. E. 347. . . . Affirmed. If the defendant enter a special appearance and move to dismiss and his motion be overruled, he should except and proceed with his defense. He does not thereby waive his rights under his motion; for, if his mo- tion be improperly overruled in the lower court, it will be allowed on appeal and the whole case dismissed notwithstanding the fact that it has been tried on the merits, Mullen v. Canal Co., 114 N. C. 8, 19 S. E. 106; but If the defendant fail to except to a ruling refusing his motion to dismiss, and proceed with his defense, his appearance becomes a general appearance for all purposes. Moody v. Moody, 118 N. C. 926, 23 S. E. 933. No appeal lies from the refusal to dismiss, until final judg- ment in the action; for the judgment overruling the motion to dismiss is merely interlocutory and is not such a judgment as can be appealed from at once. If the summons be void, the defendant may wholly ignore it or he may enter a special appearance and move to dismiss, just as he 936 PROCESS. [Ch. 13. prefers, Houston v. Lumber Co., 136 N. C. 328, 48 S. E. 738. When there in a dispute about the fact as to whether a defendant entered a general or a special appearance, the findings of the lower court are final and not reviewable. Long v. Ins. Co., 114 N. O. 465, 19 S. E. 347. "There is no appearance unless of record, for whether he appeared or not ought to be tried by the record, 6 Com. Dig. 8; 1 Tidd, 213; and an appearance to the writ should be entered in the filazer's office, by plea, or motion, or entry on the docket, or some official act, Crabb's Hist. Com. Law, 559." Shirley v. Hagar, 3 Blackf. at p. 226. See "Appearance," Century Dig. §§ 53, 54; Decennial and Am. Dig. Key No. Series § 10. DOYLE V. BROWN, 72 N. C. 393. 1875. Effect of Failure to Duly Serve Lawful Process. [Petition to set aside a decree for the sale of lands for partition. De- cree set aside and defendant appealed. Affirmed. Upon the trial of the petition it appeared that the sale was decreed in a cause in equity with the service of process on the petitioners in this cause, and that they entered no appearance in such cause in equity.] Reade, J. "Where a defendant has never been served with process, nor appeared in person, or by attorney, a judgment against him is not simply voidable, but void; and it may be so treated whenever and wherever offered, without any direct pro- ceedings to vacate it. And the reason is, that the want of service of process and the want of appearance is shown by the record itself, whenever it is offered. It would be otherwise if the record showed service of process or appearance, when in fact there had been none. In such case the judgment would be apparently reg- ular, and would be conclusive until by a direct proceeding for the purpose, it would be vacated. A plaintiff needs not to be brought into court ; he comes in. A judgment is of no force against a person as plaintiff, unless the record shows him to be plaintiff. If the record shows him to be plaintiff, when in fact he was not, then it stands as where the record shows one to be defendant, when he was not. In both cases the record is conclusive until corrected by a direct proceed- ing for that purpose. Here the record sought to be impeaqhed shows that the plaintiff in this case was plaintiff in that ; although in fact she was not. The record must therefore stand against her until it is vacated. And so the defendants insist that this action cannot be maintained ; because, they say. the plaintiff is estopped by the record. . . . Judgment affirmed. See "Judgment," Century Dig. § 25; Decennial and Am. Dig. Key No. Series § 17. LONG V. INSURANCE CO., 114 N. C. 465, 19 S. E. 347. 1894. Service iy Publication. When Constitutional. Actions In Rem and In Personam. Manner of Service on Non-residents. Doctrine of Pen- noyer v. Neff. [The summons was issued from a superior court of the state of North Carolina and served by an officer of the state of Louisiana in that state, pursuant to a statute of North Carolina making such a service valid in Sec. 6.] PROCESS. 937 those cases wherein it would be lawful to serve such process by publica- tion. Defendant entered a special appearance and moved to dismiss upon the ground that the affidavit, upon which the summons was issued to the officer in Louisiana, was insufficient. Motion refused. Permission given to the plaintiff to amend his affidavit and the defendant allowed time to answer. At a subsequent term defendant again entered a special ap- pearance and again moved to dismiss because of the insufficiency o£ both the original and amended affidavits, in that they failed to show that the defendant had property in North Carolina — it being admitted that the defendant was a non-resident and this action simply in per- sonam. Plaintiff made a counter motion for judgment for want of an an- swer, insisting that the defendant had entered a general appearance. The judge found as a fact that the defendant's appearance was only special, and rendered judgment against the plaintiff dismissing his ac- tion. Plaintiff appealed. Affirmed.] Clark, J. The finding of the court below that the appearance of the defendant at August term was a special appearance is not revie^vable. Act 1891, c. 120, authorizing service of summons and other process upon a nonresident by an officer of the county and state where he resides, is, as the act expresses it, only "in lieu of publication in a newspaper." It can only be done in those eases in which publication could be made, and has only the effect publication would have, except it may be that, when the actual notice is brought home by such service to a nonresident, he has not the right allowed the defendant, when publication is made by Code, § 220, to defend after judgment. But as to this we need not decide now. "Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken, where property is once brought un- der the control of the court by seizure, or some equivalent act. . . . Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. . . . Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory, and respond to proceedings against them." Pennoyer v. Neff, 95 U. S. 714, 727; Wilson v. Seligman, 144 U. S. 41, 44, 12 Sup. Ct. 541. "There is a large class of eases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, . . in which property of nonresidents is attached and held for the discharge of debts due by them to citizens of the state, and actions for the enforcement of mortgages and other liens." Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165; Homthal v. Burwell, 109 N. C. 10, 13 S. E. 721. Where the pro- ceeding is for the enforcement of mortgages or other liens, or the condemnation of a right of way or other easement, or the parti- tion of realty and the like, the jurisdiction as to nonresidents only authorizes a judgment acting upon the property. Where the en- 938 PROCESS. [Ch. 13. forcement of a debt or other personal liability is sought by sub- jecting property of the nonresident, the jurisdiction is based upon the seizure of the property, and only extends to the property at- tached. In neither ease can any personal judgment be rendered against the defendant, not even for the costs, nor affecting other property of his, even within the state. Winfree v. Bagley, 102 N. C. 515, 9 S. B. 198. The act (1891, c. 120) allowing service of process of this state upon a nonresident where he resides does not and cannot extend the jurisdiction. It is a convenient, and probably a more sure, way of bringing home to the nonresident the notice which formerly was made solely by publication. It is optional with the plaintiff which mode he shall use. Mullen v. Canal Co., 114 N. C. 8, 19 S. ,E. 106. But the service of process in another state is valid onty in those cases in which publication of the process would be valid. 22 Am. & Bnc. Law, 137 ; York v. State, 73 Tex. 651, 11 S. W. 869. This is true, also, in actions for divorce. Burton v. Burton, 45 Hun, 68. In the present case, the action being for the recovery of a debt, publication of summons would have been invalid, because there was no attachment of the property of defendant, to confer ju- risdiction. Winfree v. Bagley, supra. As no publication of sum- mons would have been valid, the actual service in another state "in lieu thereof" was eqiially invalid. The plaintiff declined the leave given him to amend his proceedings to bring the defendant into court, and the judge, therefore, properly dismissed the ac- tion. Not, only has the process issuing from one state no extra- territorial effect when served in another state (except as notice of a proceeding in rem, or quasi in rem, which could be served by publication of the notice), but even in the federal courts, whose jurisdiction extends throughout the Union, a personal judgment can be had against a defendant only when sued in the district where he resides. Toland v. Sprague, 12 Pet. 300. A personal judgment against a nonresident can only be obtained in a state court when he can be found and served with process while in the state (Peabody v. Hamilton, 106 Mass. 217; Smith v. Gibson, 83 Ala. 284, 3 South. 321), or, if a corporation, by service on its agent there. It should be noted that the statute now (Code, § 347), as amended by chapter 77, Acts 1893, is materially dif- ferent from the act in force when Wilson v. Manufacturing Co., 88 N. C. 5, was decided. An attachment now lies for unliqui- dated damages arising out of breach of contract, or for injury to personal or real property, but not for any other torts, — such, for instance, as libel, which was the cause of action in Winfree v. Bagley, supra. No error. See "Process," Century Dig. § 136; Decennial and Am. Dig. Key No. Series § 109. Sec. 6.] PROCESS. 939' VICK V. PliOURNOY, 147 N. C. 209, 60 S. E. 978. 1908. Different Methods of Making Due Service of Process. Effect of Service Other Than Personal Service Within the Territorial Jurisdiction of the Court. Proceedings In. Rem and In Personam. Amendment of the Summons. [Vick sued in the superior court to redeem certain lands in North Carolina from a mortgage, and to enforce a contract with respect to such lands. All the defendants were non-residents and process was served on them in strict compliance with Rev. sec. 448. Defendants en- tered a special appearance and moved to dismiss upon the ground as- signed, "that the court had no jurisdiction of the persons of the defend- ants, for want of proper service of process." Motion sustained and action dismissed. Plaintiff appealed. Reversed. The subject matter of the action was real estate situate in North Caro- lina; the plaintiff was the executor and sole heir at law of the mortgagor and a resident of North Carolina; the defendants were the real and per- sonal representatives of the deceased mortgagee and were all non-resi- dents.] Hoke, J. The principal question presented in this appeal, on the right of plaintitf to proceed as a matter of jurisdiction in the court, has heen resolved against .the defendants' position in sev- eral decisions oE this court, notably the case of Bernhardt v. Brown, 118 N. C. 701, 24 S. E. 527,' et seq. In that well-consid- ered opinion the present chief justice points out the different methods by which a court may acquire jurisdiction of a cause and of parties litigant, and, among other rulings, holds as follows : " ( 1 ) There are three modes for the ' due service of process ' — (a) by actual service, or, in lieu thereof, acceptance or waiver by appearance; (b) by publication, in cases where it is authorized by law, in proceedings in rem, in which ease the court already has jurisdiction of the res, as to enforce some lien on or a partition of property in its control; (c) by publication of the summons, in cases authorized by law, in proceedings quasi in rem, in which cases the court acquires jurisdiction by attaching property of a non-resident, absconding debtor, etc. A judgment obtained un- der process served by the two last-named methods has no personal efficiency, but acts only on the property; (2) A proceeding to en- force a mechanic's lien being in rem, the service of summons by publication is authorized by section 2] 8 (4) of The Code, if the defendant cannot after due diligence be found in the state, whether he be a non-resident or a resident; (3) In an action to enforce a mechanic's lien and in all other proceedings in rem it is not necessary, as in proceedings quasi in rem, to acquire juris- diction by actual seizure or attachment of the property — the mere bringing of the suit in which the claim is sought to be en- forced being equivalent to seizure." And, in Graham v. 'Bryan, 120 N. C. 463, 27 S. E. 122, the same judge, for the court, said: "A service by publication on a non-resident, in an action affecting property, is valid without attachment." And again, in Long v. Ins. Co., 114 N. C. 465, 19 S. E. 347, and in 940 PROCESS. [Ch. 13. other eases, it has been held that, while personal service of process in another state on a non-resident defendant is in lieu of service by publication and only available in cases where such service would be sufficient, yet. when the statute so provides and its terms are complied with, both methods are valid as to actions substaji- tially in rem or quasi in rem, and where the relief sought is re- stricted (1) to an application of the property seized hj process in the cause, (2) or to a judgment affecting the title to property or some interest therein, or lien thereon, which had its situs within the limits of the court's jurisdiction. The cases supra are in accord with the decisions of the supreme court of the United States on the same subject. Pennoyer v. Neff , 95 U. S..715 ; Arndt v. Griggs. 134 U. S. 316, 10 Sup. Ct. 557. In this last case, being an action to determine the interest of certain claimants to real estate situated within the state of Nebraska, and to quiet the title thereto, Mr. Justice Brewer, delivering the opin- ion of the court, quotes with approval from the case of Beebe v. Doster, 36 Kan. 666, 675, 677, 14 Pac. 150, et seq., as follows: "Mortgage liens, mechanics' liens, materialmen's liens and other liens are foreclosed against non-resident defendants upon service by publication only. Lands of non-resident defendants are at- tached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property they may have in Kan- sas, and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. Gil- lespie V. Thomas, 23 Kan. 138; Walkenhorst v. Lewis, 24 Kan. 420; Eowe v. Palmer, 29 Kan. 337; Venable v. Dutch, 37 Kan. 515, 519, 15 Pac. 520. All the states, by proper statutes, author- ize actions against non-residents and service of summons therein by publication only, or service in some other form no better; and, in the nature of things, such must be done in every jurisdiction, in order that full and complete jixstice may be done where some of the parties are non-residents. ' ' And a^ain, quoting from Bos- well's Lessee v. Otis, 9 How. 336, 348: "Turning now to the de- cisions of this court: In Boswell's Lessee v. Otis, 9 How. 336, 348, was presented a case of a bill for specific performance and ac- counting, and in which was a decree for specific performance and accounting, and an adjudication that the amount due on such ac- counting should operate as a judgment at law. Service was had by publication, the defendants being non-residents. The validity of a sale, under such judgment was in question. The court held that portion of the decree and the sale made under it void, but, with reference to jurisdiction in a case for specific performance alone, made these observations: 'Jurisdiction is acquired in one of two modes — first, as against the person of the defendant, by service of process, or, secondly, by a procedure against the prop- erty of the defendant within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judg- Sec. 6.] PROCESS. 941 inent beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem in ordinary eases; but where such a procedure is authorized by statute on publication, without personal service of process, it is substantially of that character.' And on the question before them the court held : ' ( 1 ) A state may provide by statute that the title to real estate within its limits, shall be settled and determined by a suit in which the defendant, being a non-resident, is brought into court by publication ; (2) The well-settled rules that an action to quiet title is a suit in equity, that equity acts upon the person, and that the person is not brought into court by service by publication alone, do not apply Avhen a state has provided by statute for the adjudication of ti- tles to real estate within its limits as against non-residents, who are brought into court only by publication.' " This is an action to establish plaintiff's title to a tract of land situated within the jurisdiction of the court, and to relieve the same from any and all liens that the defendants may hold on the same. The terms of the statute providing for personal service beyond the state have been duly complied with. Kevisal, sec. 448. And a correct application of the principles in the foregoing de- cisions clearly determines that, if the facts are established as al- leged, the court has jurisdiction to afford the relief demanded. There is no doubt of the correctness of the position urged upon us by the defendants' counsel, that a valid judgment strictly in personam cannot be had unless there has been a voluntary ap- pearance by defendant or there has been service of process upon him within the jurisdiction of the court, and that personal serv- ice of process beyond the jurisdiction does not affect the principle or render such a judgment valid. But the relief sought here is not strictly in personam, and. while it may not be with exactness a proceeding in rem, the decisions all treat it as substantially in rem, and the question of the court's jurisdiction comes clearly within the principles we hold to be controlling, and the facts bring the case within the express terms of our statute providing for service by publication. Kevisal, sec. 442. Such service may be had whenever the defendant is a proper party relating to real property, and (subsection 3) ''where he is not a resident of this state, but has property therein and the court has jurisdiction of the subject of the action;" (subsection 4) "where the subject of the action is real or personal property in this state and the de- fendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in ex- cluding the defendant from any lien or interest therein. ' ' Objection is further made to the summons served for that the same is not under seal of the court. We are inclined to the opin- ion that, under section 431, Revisal, a seal is required — certainly '942 PROCESS. [Ch. 13. it is always desirable— when a summons is sent to a distance. Its presence may serve to assure the oiifieer of another state that the proceedings are in good faith and under official sanction; but when it appears that the defendants have been actually notified, as in this ease, not only of the time and place when they are re- quired to appear, but also fully informed of the nature and pur- pose of the action, the objection that there is no seal to the sum- mons is not of the substance. If the officer has acted without it, the absence of a seal is only an irregularity, which may be cured now by having the seal affixed, and the same may be said as to the form of the summons. It is sufficient to notify the parties, and is a substantial compliance with the statute, accompanied as it is by a sworn statement of the nature of the action. The power of amendment to the extent indicated has been upheld by express decision. Henderson v. Graham, 84 N. C. 496; Clark v. Hellen, 23 N. C. 421. We hold that the court had acquired jurisdiction and there was error in dismissing the action. Error. See note to next succeeding case and the cross references there given. See "Judgment," Century Dig. §§ 25-33; Decennial and Am. Dig. Key No. Series § 17. BACON v. JOHNSON, 110 N. C. 114, 14 S. E. 508. 1892. Prerequisites to Valid Service iy Publication. Essentials of the Affi- davit. [Action for specific performance of a contract to convey real estate situated in North Carolina. The defendants were non-residents and the summons was duly issued, and returned by the sheriff endorsed "not to be found in my county." Thereupon the attorney of the plaintiff made his affidavit, the material part of which is as follows: "That defendants, upon whom service of summons is to be made, cannot, after due dili- gence, be found within the state of North Carolina, and he is informed and believes they are residents of the state of Maryland; that a cause of action exists against them in favor of plaintiff, and that they are proper parties to the same, which said action relates to real property in this state, to-wit, specific performance of a contract to convey a tract of land lying in Craven county. Therefore affiant prays that service of summons upon defendants be ordered by publication, as required by law in such cases." Upon motion of plaintiff, founded upon this affida- vit, the court made its order directing that publication be made of the summons and notice to defendants in the Newbern Journal, a news- paper, for six weeks, requiring them to appear. Such publication was made; and at spring term, ]891, of the superior court, the plaintiff filed his complaint, and, the defendants failing to appear, he obtained judgment by default final for want of an answer. Thereafter defend- ants entered a special appearance and moved "to set aside and declare void and irregular" the judgment theretofore entered, upon the ground that the service by publication was void for non-compliance with the statutory requirements and, consequently, the court had no jurisdic- tion. Defendants also moved to be allowed to come in and defend the action notwithstanding the judgment by default — basing such motion on sec. 220 of The Code (Revisal sec. 449). Both motions were denied and defendants appealed. Reversed.] Sec. 6.] PROCESS. 943 Merbimon, C. J. The service of the summons or notice as ■original process in the action by publication must be made strictly in accordance "with the requirements of the statute. Code, §§ 218, 219. This method of service of process and giving the court ju- risdiction is peculiar, and out of the usual course of procedure. The statute prescribes with particularity and caution the eases and causes that must exist and appear by affidavit to the court in order that it may be allowed. The court must see that every prerequisite prescribed exists in any particular case before it grants the order of publication ; otherwise the publication will be unauthorized, irregular, and fatally defective, imless in some way such irregularity shall be waived or cured. Spiers v. Halstead, 71 N. C. 209 ; Windley v. Bradwav, 77 N. C. 333 ; Wheeler v. Cobb, 75 N. C. 21 ; Faulk v. Smith, 84 N. C. 501. The statute cited above, among other things pertinent here, prescribes and requires that, in order to obtain an order that service of notice of the ac- tion be made by publication, it must appear by affidavit "that a cause of action [exists] against the defendant in respect to whom service is to be made, or that he is a necessary party to an action relating to real property in this state" in a case wherein that party "is a non-resident of this state, but has property therein, and the court has jurisdiction of the subject of the action;" or that "the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein ; or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein." Such prerequisites must appear in their substance at least. It is not sufficient to state generally that a cause of action exists against the defendants, or that they are necessary parties to the action. A brief summary of the facts constituting the cause of action or of the facts showing that the parties are necessary parties to the action should be stated, so that the court can see and determine that there exists a cause of action, or that the par- ties are necessary for some appropriate purpose. The party de- manding the order shall not be the judge to determine that a cause of action exists, or that the parties sought to be made par- ties are necessary parties. It is the province and duty of the court to see the facts and determine the legal question as to whether there is a cause of action or not. Nor is it sufficient to state that the party is a necessary party to an action to compel specific performance of a contract to convey land in a particular locality. The facts must be stated with sufficient fullness to de- velop the contract and the relation of the parties to it ; otherwise the party demanding the order will determine that he has a cause of action, while the statute requires the court to do so upon facts appearing by affidavit. Claflin v. Harrison, 108 N. C. 151, 12 S. E. Rep. 895, and the cases cited supra. The affidavit upon which the order of publication was made in this case failed to state the facts on which the plaintiff relied to constitute his cause of action, 944 PROCESS. [Ch. 13. and other facts to show that the appellants were necessary par- ties. The court failed to see and determine upon evidence' ap- pearing as required that there was a cause of action, and that the defendants were necessary parties to the action for some proper purpose. Nor did it appear that the defendants had property in this state. This is material when the purpose is to allege a cause of action against the defendant. The order of publication was therefore improvidently granted. Publication was not made according to law. and the court should have set the judgment com- plained of aside. It does not appear that the irregularity was cured or waived in any Avay. We may add also that the court should have found the facts upon which it founded its conclusion "that no just or reasonable cause has been shown why the said judgment should be set aside as irregular and void, or that the defendants be allowed to come in and defend said action," etc. It may be that the court erro- neously decided that there was no legal cause, and exercised its discretion upon that ground in refusing to allow the appellants to make defense. "Whether there was such cause or not is a ques- tion of law, and the decision of the court in that respect is re- viewa,ble in this court. The court recites in its judgment that it finds from "the record and the said affidavit that no just or rea- sonable cause has been shown," etc. It should have found the facts, and set them forth in the record, so that its decision of the question of law arising upon the facts might be reviewed. In the absence of demand that the facts be found, it might not be error to fail to set the findings of fact forth in the record. But the contentions of the defendants in this case imply a demand that the facts be found. The court drew its conclusions from facts not set forth. Utley v. Peters, 72 N. C. 525. There is error. The judg- ment must be reversed, and further proceedings had in the action according to law. To that end let this opinion be certified ac- cording to law. It is so ordered. See Mullen v. Canal Co., 114 N. C. 8, 19 S. E. 106; Lemly v. Ellis, 143 N. C. 200, 55 S. E. 629; Penniman v. Daniel, 91 N. C. at p. 434, inserted at ch. 11, sec. 4, ante; Haddock v. Haddock, 201 TJ. S. at p. 566, 26 Sup. Ct. 525, inserted at ch. 12, ante; Grocery Co. v. Bag Co., 142 N. C. 174, 55 S. E. 90; Best v. Brit. & Am. Co., 128 N. C. 351, 38 S. E. 923. A civil action must ordinarily be commenced by the issue of a summons, but it is not necessary to do so -where the defendant is not within the reach of process of the court and cannot be personally served. In these last mentioned instances it is sufficient to file the requisite affidavit and proceed to serve the process by publication. Grocery Co. v. Bag Co., 142 N. C. 174, 55 S. E. 90. Publications for feme covert in her maiden name, will it do? 19 L. R. A. (N. S.) 984. See "Process," Century Dig. §§ 108-120; Decennial and Am. Dig. Key No. Series § 96. PARTIES. 945 CHAPTER XIV. PARTIES. HAYS V. LANIER, 3 Blackford, 322. 1833. Necessity for Naming the Plaintiffs. Actions ty a Copartnership. [The firm of Stapp, Lanier & Co. brought an action against James W- Hays and Thomas Heck (trading under the style and name of Hays & Heck) and John W. Wheatly. The summons did not give the individual names of the persons composing the plaintiff firm. Hays & Heck moved to quash the writ. Motion overruled. They then demurred and the demurrer was overruled, and they carried the case to the supreme court by writ of error. Reversed.] Stevens, J. . . The only question before the court is, whether the defendants in eiTor can, in their collective capacity, ander the style and name of Stapp, Lanier & Co., prosecute and maintain this action. There is no principle more certainly and satisfactorly settled than that, in all actions, the writ and decla- ration must both set forth, accurately, the Christian and surname of each plaintiff and each defendant, unless the party is a corpo- ration, and is authorized to sue and be sued in such corporate name. This rule of law and practice is sustained by reason, jus- tice, and the highest authorities. In the case now before us, the defendants in error are not a corporation known to the law by the artiiieial name of Stapp, Ijanier & Co. ; they are natural persons, and must sue in their individual names. It is also equally well settled that in all cases of contracts, if it appears upon the face of the writ or declaration that there are other obligees who are not named, it is fatal on demurrer. In this case, the note and writ both show that there are other obligees who are not named : this is fatal on demurrer. 1 Chit. PL 7 ; 2 Johns. Cas. 384 ; Bent- ley V. Smith, 3 Caines, 170; Anderson v. Martindale, 1 Bast, 497. . . . Suppose the wTit in this case, instead of issuing in the form it did, had issued in the name of Milton Stapp, James F. D. Lanier, etc., partners, trading under the style and firm of Stapp, Lanier & Co., would there have been any difficulty? It is apprehended that there could not have been any ; the record, proceedings and judgment could have followed the writ, and all might, perhaps, have been correct. Judgment reversed. See Heath v. Morgan, 117 N. C. 504, 23 S. E. 489, to the same effect as the principal case. See "Partnership," Century Dig. § 360; Decen- nial and Am. Dig. Key No. Series § 197. Remedies — 60. 946 PARTIES. [Gh- 1^- PALIN V. SMALL, 63 N. C. 484. 1867. Naming the Plaintiffs When Copartneivhip Sues. [Action for breach of warranty of the soundness of a horse. The summons or "writ was in the name of William Palin, John Palin and Joseph Palin, partners, trading under the firm and style of Palin & Brothers." The defendant insisted that it was necessary that plaintiffs not only show that the warranty was made to them, hut also that plaintiffs were copartners. The judge ruled otherwise and there was a verdict and judgment against the defendant, and he appealed. Af- firmed.] Settle, J. Had the writ in this case been issued in the firm name of "Palin & Brothers," without reciting the individual names of the persons composing the firm, the defect would have been fatal; for it is well settled that the writ must set fortE ac- curately the name of each plaintiff and defendant. But here the writ does set forth the full names of all the plaintiffs, with the addition that they are "partners trading under the firm and style of Palin & Brothers." It is not pretended that the contract was not made with the plaintiffs, William Palin, John Palin, and Jo- seph Palin, but the defendant insists that as the writ recites that they were "partners trading under the firm and style of Palin & Brothers," the fact of partnership under such name should have been proved upon the trial. His honor held tJiis to he unneces- sary, and was of the opinion that these words in the writ should he regarded as surplusage. In this we concur. The addition of the firm name to the individual names composing the firm was not necessary, but being added it can do no harm, and will not sub- ject the plaintiffs to any additional proof. Judgment affirmed. See "Partnership," Century Dig. § 360; Decennial and Am. Dig. Key No. Series § 197. POWERS V. HURST, 3 Blackford, 229, 231. 1833. Necessity for Naming the Defendants. [Hurst instituted a suit against "Clement Powers and others whose names are unknown, heirs of Walter E. Powers, who all are not resi- dents of the state." This was held sufficient by the judge. Powers car- ried the case to the supreme court by writ of error. Reversed.] McKiNNEY, J. . . . The proceeding is instituted against Clement Powers and others unknown, alleged to be the heirs of the judgment defendant, who, it is said, "are not all residents of Indiana." This statement of non-residence is indefinite, and clearly insufficient. If a part of the heirs were residents, they could not be joined with those who were non-residents. Prom the expression used, "who are not all residents of Indiana," a part at least must be considered as being residents, and therefore, exclusive of other objections, the affidavit would be defective. The statute authorizing the proceeding against non-resident heirs. PARTIES. 947 does not ai^thorize it against them eo nomine, but leaves to the rules of the common law the mode of enforcing their liability, subject to the particular provisions of the statute. We have no recollection of a proceeding at common law against unknown heirs. At common law or in equity, if heirs are required to be made defendants to a suit, it is the duty of the plaintiff to render them such by their proper names. . . Judgment reversed. See Wilson & Shober v. Moore, 72 N. C. 558, and note, inserted at ch. 13, sec. 6. See "Attachment," Century Dig. § 295; Decennial and Am. Dig. Key No. Series § 111. GAMLY V. BECHINOR, 2 Levinz, 197. 1678. Naming the Defendants. Assumpsit; whereas quidam Allison was indebted to the plaintiff, who intended to sue the said Allison, the defendant ; in consideration the plaintiff would forbear the said Allison promised him to pay the debt. After judgment upon verdict for the plaintiff in C. B. in non assumpsit, error was brought in B. R. and it was assigned that it does not appear what Allison was intended in the case; for it is quidam Allison without christian name, and so it may be any Allison in the world; and Rainsford, Chief Justice, and Twj^sden held this an error. But Wylde and Jones contra: Be it what Allison it will, the defend- ant hath promised, and that is so found, and this judgment may be pleaded in bar to any other action brought in consideration of forbearance of any Allison mthout christian name, with an aver- ment that he is the same person; and rather than reverse it for this cause, they would intend quidam was his christian name. Quare adjournat. See "Parties," Century Dig. § 108; Decennial and Am. Dig. Key No. Series § 66. WILSON V. THE STATE, 6 Blackford, 212, 213. 1842. Result of a Defect of Parties in a Court of Law. Misjoinder and Non- [Wilson, as principal, and McCarty, as surety, entered into a recog- nizance in the sum of $400, payable to the state, to be void upon condi- tion that Wilson appear a,t court, etc. Wilson did not appear according to the terms of the recognizance, and the state proceeded against Wil- son alone to enforce the recognizance. Wilson contended that the pro- ceeding could not be sustained because it was against him alone and not against him and McCarty — they two being jointly liable on the recognizance. The judge ruled against Wilson and gave judgment against him for $400, and Wilson carried the case to the supreme court by writ of error. Aiiirmed. While Wilson duly pleaded that McCarty was jointly liable with him, he failed to plead that McCarty was living at the commencement of the proceeding — but for that he would have defeated the state.] 948 PARTIES. [Ch. 14. Dewey, J. . . . Some of the doctrines which have been es- tablished in relation to the joinder of parties seem to be somewhat arbitrary. In actions .founded on contract, if any of those living to -whom the promise or obligation is made be omitted as plaintiffs, or any to whom it is not made be joined, and the fact appear in the declaration, it is fatal on demurrer, in arrest of judgment, or in error; and if the defect is not shown by the pleadings, it is ground of nonsuit under the general issue. 1 Chit. PI. 13 ; Ver- non V. Jeffreys, 2 Stra. 11-46; Anderson v. Martindale, 1 Bast, 497 ; Scott V. Godwin, ] B. & P. 67. [Not so in equity — ^the cause is continued that proper parties may be made. Park v. Ballen- tine, 6 Blackf. 223, post.] But when the action is by executors or administrators, either on contract or tort, and there is a co- executor or administrator not joined, objection to the nonjoinder can be taken only (after oyer of the letters testamentary or of administration) by a plea in abatement, that the omitted executor or administrator is living and not made a party. 1 Chit. PI. 20 ; 1 Saund. 291, g. n. 4. The same rule is applicable to all actions founded on tort, though the nonjoinder of a person jointly in- terested with the plaintiff appear of record. 1 Saund. 291, g, h. n. 4. In actions ex contractu, if a part only of several joint eon- tractors be sued, and the defendant wish to avail himself of the omission of the others, he must do it by a plea in abatement ; if he omit to do so, he cannot afterwards urge the objection in any form, though the declaration set out a joint contract. 1 Saund. 154, n. 1 ; Rees v. Abbott, Cowp. 832, per Buller, J. ; Hawkins v. Ramsbottom, 6 Taunt. 179. So, to an action on a specialty, part of the obligors being omitted, the defendant cannot have oyer and demur; he must still plead in abatement. Cabell v. Vaughan, 1 Saund. 291, a, n, 2. The plea in abatement for the nonjoinder of a contractor, must show not only that the omission has been made, but that the contractor omitted is living. Cabell v. Vaughan, 1 Saund. 291, a, b, n, 4. If, however, the declaration, or other pleading of the plaintiff, expressly show what it would be necessa,ry to aver in the plea — that there are joint contractors who are not joined, and who are living — then the defendant may denmr, move in arrest of judgment, or sustain eiror. 1 Chit. PL 46; 1 Saund. 291, b, n. 4, and the authorities there cited; Dillon V. The State Bank, 6 Blkfd. 5. We are aware that in scire facias on a recognizance, and also on a bond to the crown, it has been held, that if the declaration show that a part only of the cognizors or obligors are sued, though it does not appear that the others are living, the nonjoinder is fatal on demurrer. Rex v. Young, 2 Anstr. 448; Rex v. Chapman, 3 Id. 811. Believing these cases to be irreconcilable, in principle, with the decisions which have been made in regard to nonjoinder of parties to ordinary con- tracts, we do not feel disposed to adopt the supposed distinction on which they are founded. The record before us shows only, that there was a joint recognizor, who is not a party to the scire PARTIES. 949 facias ; but it does not show that he was living at the commence- ment of the suit. The circuit court, therefore, committed no er- ror in rendering judgment in favor of the state. Judgment af- firmed. See, to the same effect as the principal case, Wilcox v. Hawkins, 10 N. C. 84, which also rules that a delect of parties may be cured by- amendment, if leave to amend is moved for in apt time, in the lower court. But in Grant v. Rogers, 94 N. C. 755, it is held that such an amendment will be allowed in the supreme court, though not moved for in the lower court, in proper cases. See also Mordecai's L. L. 1152. See "Recognizances," Century Dig. § 40; Decennial and Am. Dig. Key No. Series § 12. PARK V. BALLBNTINE, 6 Blackford, 223. 1842. Result of a Defect of Parties in a Court of Equity. [A trustee filed a bill in equity for the sole purpose of obtaining relief for his cestui que trust, which cestui que trust was not joined as a party. The judge dismissed the bill on the final hearing because of the defect of parties. The trustee appealed. Reversed.] Devstey, J. . . . The dismissal of the bill is against estab- lish'fed practice. It is true, the bill could not be maintained in the name of Park, who is shown to be a mere trustee for Button. The latter should have been a party. Malin v. Malin, 2 John. Ch. 238, and authorities there cited. Between the present parties, the cause is not in a situation to be heard upon its merits ; but the bill should not have been dismissed. The cause should have stood over, that the proper parties might have been made. Anon. 2 Atk. 15 ; Jones v. Jones, 3 Atk. 111. See next preceding case, as to effect of a defect of parties in actions at law. See "Equity," Century Dig. §§ 759, 786; Decennial and Am. Dig. Key No. Series §§ 362, 375. LEWIS V. McNATT, 65 N. C. 63, 66. 1871. Result of a Defect of Parties UncLer the Code Practice. [Action of trespass vi et armis commenced in 1860, before the adop- tion of the Code practice, and tried in 1870, after the adoption of the Code practice. The action was brought by Lewis alone. The evidence showed that the injury complained of was to the joint property of Lewis and another. The defendant insisted that plaintiff could not recover because of a failure to join the other joint owner as a party plaintiff. The judge ruled that the plaintiff could recover his share of the dam- ages incident to the injury to the joint property, and he so instructed the jury. Defendant excepted and appealed. Affirmed as to this ruling, but reversed on another ruling not germane to the subject under consid- eration.] Dick, J. . . . The question of pleading raised on the trial by the defendant's counsel is attended with some difficulty on account of the change in our system of procedure. At common 950 PARTIES. [Ch. 11. law in actions in form ex delicto, which are not for the breach of a contract, if a party who ought to join be omitted, the objec- tion can only be taken by a plea in abatement, or by way of ap- portionment of damages on the trial; and the defendant cannot, as in actions in form ex contractu, give in evidence the nonjoinder as a ground of nonsuit on the plea of the general issue. 1 Chit. PI. 76. [Inder the C. G. P., sec. 8, par. 1, all civil actions pending in the courts when the present constitution was approved by congress, and which were not founded on contract, are to be governed by the C. C. P., "as far as may be according to the state of the progress of the action, and having regard to its subject and not to its form." A different provision is made as to actions founded on contracts made previous to the C. C. P. Merwin v. Ballard, 65 N. C. 168. The C. C. P., sec. 62, provides that the parties who are united in interest must be joined as plaintiffs or defendants, etc. If a necessary party to an action be omitted, and the defect appears upon the face of the complaint, the nonjoinder must be taken advantage of by demurrer. C. C. P. sec. 95. If it does not appear upon the face of the complaint the objection may be taken by answer. C. C. P. 98. "If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same." C. C. P. sec. 99. It does not appear from the transcript at what term of the court the issues were joined in this case, and the defendant might have put in a plea in abate- ment at any time before pleading in bar of the action. If the is- sues were not joined when the case was transferred to the su- perior court, he would have been entitled to have objected to the nonjoinder of a necessary party by answer, as the defect does not appear in the pleadings. As the defendant went to trial without taking any such objection, the charge of his honor must be sus- tained. A defect of parties — a failure to join those who should be joined — must be taken advantage of by demurrer if it appear on the face of the complaint, and by answer if it does not so appear; but the misjoinder of unnecessary parties is a mere matter of surplusage under the Code practice. Tate v. Douglas, 113 N. C. 190, 18 S. B. 202; Pell's Rev. at p. 218. See "Parties," Century Dig. §§ 123-125; Decennial and Am. Dig. Key No. Series § 80. HAY V. M'COY, 6 Blackford, 69. 1841. Corporations as Parties. A count in a declaration in debt commenced as follows : Andrew P. Hay and others (naming them), being a body corporate and politic, known by the name of the board of trustees of the Clark county seminary, and being the regular successors in office of John C. Parker and others (naming them), were summoned to answer, etc. It then stated that the last named persons, Parker PARTIES. 951 and others, being the board of trustees, etc., by an agreement sealed with the seals of the trustees last mentioned, promised, etc., that neither they, nor the defendants, being their successors, had paid, etc. Held, that this count was insufficient; that the addi- tion to the defendants' names of the words "being a body cor- porate, etc.," was a mere descriptio personarum; that the defend- ants must be considered, under this count, as being sued in their individual capacities, on a contract to which they were not parties, and by which they were not bound. Held, ako, that if, as the plaintiff contended, the agreement sued on was binding on the board of trustees of the Clark county seminary as a corporation, the suit should have been brought against the corporation by its corporate name. . . . See "Corporations," Century Dig. § 1954; Decennial and Am. Dig. Key No. Series § 505. SHIRLEY V. HAGAR, 3 Blacliford, 225, 227. 1833. Infants as Parties Plaintiff or Defendant. Prochein Amy. Chiardian ad, Litem. [Action on the case for slander, brought by Mary Ann Hagar, by John Hagar her father and next friend, against Shirley. Among a number of defenses — ^including a motion to quash, a demurrer and four pleas, all of which were overruled — the defendant objected to the char- acter in which the plaintiff sued. This objection was also overruled and there was a verdict and judgment against Shirley who carried the case to the supreme court by writ of error. Reversed. There was no allegation in the declaration that Mary Ann Hagar was an infant, nor was there any allegation that John Hagar had been admitted by the court to act as her prochien amy.] McKiNNEY, J. . We will proceed to examine the objec- tion made to the character in which the plaintiff sues. She sues by prochein amy, without any averment of infancy in the dec- laration, or of the admission of the prochein amy by leave of the court. This is assigned as error, and it is contended by the de- fendant in error, that the objection is not well taken, because the law will presume infancy, and therefore its averment is unneces- sary. At common law, an infant could neither sue nor defend, except l)y guardian. Lawes on PI. in Assump., 432; Harg., note 1, to Co. Litt., 135, b. By the statutes of Westm. 1, 13 Edw. 1, ch. 49, and "Westm. 2, 13 Edw. 1, ch. 15, he is authorized to sue by pro- chein amy. In all cases, however, it is error if an infant, though sued with others, does not defend by guardian. Harg., notes 1, 2, to Co. Litt. 119, 120. In either character, as plaintiff or de- fendant, prior to the statutes of Westminster, and subsequent thereto when defending, the guardian is by special appointment of the court. Ibid. The reason why an infant, irresponsible for costs, and without the maturity of judgment such as the law re- 952 PARTIES. [Ch. 14. quires to give validity to contracts, should sue by prochein amy, is thought obvious. It is to meet a liability for costs, to restrain from ruinous litigation, and to afford to the inexperience of legal minority, through the intervention of the court, a necessary pro- tection. A prochein amy, therefore, sues by the permission of the court, and the fact of such permission being given, should ap- pear in the declaration, or it is error; 2 Saund. 117 f , n. 1 ; and it is the duty of a court, if informed that a suit by prochein amy is not for the interest of the infant, to arrest the proceeding. This power, possessed by the court, is connected with its general su- perintending control over infants. 2 Saund. PI. and Ev. 580; Gould's PI. 249; Bac. Abr. Infancy, K, 2. The presumption of infancy is never indulged. As a ground of relief, it must be shown; and of defense, be either pleaded or given in evidence. It is said, he ought to appear to be an infant; for, if he sues at full age by guardian or prochein amy, it is error. 6 Com. Dig. PI. 2, e. 1, p. 302; 2 Inst. 261. The right to sue is inseparably connected with the legal interest, and the fact that the legal in- terest in the action remains in the infant, though suing by pro- chein amy, is demonstrated by the exercise of the rights by courts, to dismiss the prochein amy for various causes, for malconduct in the management of the cause, if required as a witness, or from lapse of time, if the infant before the end of the suit attains full age. The right then to sue by prochein amy being dependent upon minority, and the admission of the prochein amy by the court, these facts should appear in the declaration, or it is error. Being of opinion that the suit was improperly brought, the question occurs, in what manner should the objection have been taken ? The defect appears on the declaration, and is the subject of demurrer. A demurrer to the declaration would have reached it, but as the demurrer to the declaration was withdrawn on being overruled, the objection was available on the issue at law to the pleas, as that issue assumed on the part of the plaintiff the suffi- ciency of the declaration. We are, therefore, of opinion that the judgment of the circuit court must be reversed. See "Infants," Century Dig. § 278; Decennial and Am. Dig. Key No. Series § 92. HOUGH V. CANBY, 8 Blackford, 301. 1846. Equity Practice When Infants are Defendants. [Canby filed a bill in equity against Hough and others who were in- fants. The relief sought was the enforcement of a vendor's lien. No subpoena was served on the infants, but the court appointed a guardian ad litem to defend on their behalf. The guardian ad litem appeared, but did not answer. No evidence was offered. In this state of the rec- ord the judge decreed a sale of the infants' lands to satisfy the alleged liens. Appeal by the infants. Reversed.] PARTIES. 953 Dewey, J. . . . This decree is erroneous. Process should have been served upon the infant defendants in the same manner as if they had been adults. 1 Smith's Ch. Pr. 146. And to en- able them to plead, answer, or demur, an assignment of a guardian was necessary. lb. 255. It was irregular, according to the Eng- lish practice, to assign a guardian for the infants before service of process upon themselves. But we do not mean to say that, im- der our practice, it is essential that the service of process should precede the appointment of a guardian ; the record, however, must show both to have been done. Such not being the fact in the cause before us, it was erroneous to proceed to a decree. It was also erroneous to decree against infants without proof of the mat- ters alleged in the bill. Hough v. Doyle, 8 Blackf. 300. . . . Decree reversed. A decree will not be made against infants upon mere admissions in the pleadings. There must be proof in the same manner as if the bill had been denied. Hough v. Doyle, 8 Blackf. 300. The infant should be personally served with process. Pell's Rev. p. 171. See "Infants," Cen- tury Dig. §§ 195, 257; Decennial and Am. Dig. Key No. Series §§ 78, 89. MORRIS V. GENTRY, 89 N. C. 248. 1883. Practice in Appointment of Prochein Amy or Guardian ad Litem for Infant Parties. Common Law and Code Practice. How far Infants Bound by Fraudulent Judicial Proceedings. [Ejectment to recover lands which plaintiffs inherited from their father, but which had been sold under a decree of a court of equity and purchased by one under whom the defendant claimed by mesne con- veyances. The decree of sale was rendered in an ex parte petition for a sale for partition. The petition purported to be filed by the mother of the plaintiffs while they were infants — she apparently assuming to act as their next friend. While the plaintiffs were ostensibly parties to the proceedings, they knew nothing of it — neither did their mother. The land was worth $2500, but was sold for $469. The commissioner re- ported that the price bid was not a fair value, but, notwithstanding this report, the sale was confirmed and title ordered to be made to the purchaser. Title was made as directed. Thereafter the defendant ac- quired the title of the purchaser. The defendant bought at a bankrupt sale and had full knowledge of the above facts. Such was the substance of the complaint. Defendant demurred on the ground that it appeared in the complaint that the court had jurisdiction of both the subject- matter and the parties and, hence, the decree could not be set aside. The demurrer was overruled and an order entered permitting the plain- tiffs to amend their complaint and the defendant to answer. Defendant appealed. Reversed. The petition under which the land was sold, was filed in the court of equity prior to the adoption of the Code practice; but the decree of sale and other subsequent proceedings were had In the superior court after the adoption of the Code practice.] Merrimon, J. It is an essential and fundamental principle of the law, that all properly constituted judicial proceedings must be upheld as regular, warranted by the facts and the law^ applica- ble to them, valid and eifectual, until the contrary shall be shown 954 PARTIES. [Ch. 14. and established bj^ some competent proceeding for that purpose. Hence, wherever it appears upon the face of the record in any action or other judicial proceeding, that the court had jurisdiction of the parties litigant and the subject-matter in litigation, the law presumes that the court got jurisdiction in a regular or proper way, and that its orders, decrees and judgments are valid and effectual, however irregular or fraudulent, until the irregularity and in- validity, because of fraud or other sufficient cause, shall be duly established, and such proceedings, orders, decrees and judgments shall be declared invalid by proper decree. To allow the records of courts of justice, their judgments and decrees, to be questioned and held to be inoperative in the same tribunal that made them, or in other tribunals, would be subversive of judicial authority and destructive of public and private justice. The law is too true to itself, and too thorough in its life and vigor, to allow of such practical absurdity; it requires that its courts shall be careful to see that their judgments settle and establish rights, and when once made must prevail everywhere. The courts making them will be slow to disturb them, and never, except for adequate cause shown in a direct proceeding for the purpose. It is likewise well settled that courts will protect third persons who honestlj' do acts and acquire rights under their judgments, although such judgments may be afterwards reversed. All that such persons need be careful to see, is, that the court had juris- diction of the parties and of the subject matter, and that the order or judgment, upon the faith of Avhich si^ch acts were done or rights acquired, authorized the same to be done or acquired. As, where land was sold by an order of court, it is only necessary that the purchaser should see that the coart had jurisdiction of the; parties and had authority to order the sale, and that the order did authorize it. This implies, however, that the third person pur- chased honestly on his part, and without knowledge of fraud on the part of others in procuring or bringing about the sale. He will not be allowed to take advantage of his own fraudulent con- duct or that of others, of which he had knowledge at the time of the purchase. University v. Lassiter, 83 N. C. 38; Ivey v. Me- Kinnon, 84 N. C. 651 ; Sutton v. Schonwald, 86 N. C. 198 ; GObert V. James, 86 N. C. 244. Now, the late court of equity and the superior court succeeding to its jurisdiction in Stokes county had authority upon the ex parte petition of the plaintiffs, while they were infants, suing by their mother as next friend, to order and make a valid sale of their land mentioned, for partition, and to pass the title thereto through its commissioner appointed for the purpose. The Code, sec. 1602, Ex parte Dodd, 62 N. C. 97 ; Rowland v. Thompson, 73 N. C. 504: George v. High, 85 N. C. 113 ; Ivey v. McKinnon ; Sutton v. Schon- wald, supra. According to the allegations in the complaint, the record upon its face shows that an ex parte petition was filed by the plaintiffs, PARTIES. 955 then infants, suing by their mother as next friend, suggesting that the land in question ought to be sold, that an order of sale was made and confirmed by the court, the purchase money was paid, and by the like order title was made to the purchaser. Irregu- larities, important ones, in the proceeding to sell the land are al- leged, but it was sufficient for the purchaser, (taking it that he purchased honestly and fairly and without the knowledge of fraud on the part of any one in procuring the sale to be made, and the contrary is not suggested or alleged) to see that the court had jurisdiction of the parties and of the subject-matter, and that the order authorized the sale to be made. All this appeared to him. It is said, however, that the plaintiffs and their mother, repre- sented as being their next friend, in fact, had no knowledge of the filing of the petition or of the sale of the land until recently, long after it was made, and that they never authorized or sanc- tioned the same. But the presumption of law is that they had knowledge and notice of the whole proceeding, and it must be tal^en that they had; that they by themselves, or by an attorney of the court, filed the petition with the practical knowledge and sanction of the court, and the whole was done at their instance, by the court, it having proper regard for the interests of the in- fants, and they must be bound by the decrees until, by proper action, the whole of the proceeding shall, because of material ir- regularities, be set aside ; or, because of fraud on the part of some one in procuring the sale to be made, declared and decreed to be void; and even then, the sale to the purchaser will remain good and effectual, unless the plaintiffs can allege and prove that he fraudently procured or participated in the fraudulent procure- ment of the sale to be made, or had knowledge at the time of the sale of such fraud on the part of others, or such information as put him on inquiry. It is not alleged that the purchaser, William H. Gentry, pur- chased otherwise than honestly, nor is there any suggestion in the complaint unfavorable to him, except that he bought the land at greatly less than its reasonable value; but it is alleged that his son, the defendant Sterling Gentry, purchased from the assignee in bankruptcy "with full knowledge of the manner in which his father became the purchaser." This allegation is vague and in- definite. So far as appears from the complaint the purchase by the father was bona fide. If the purchaser of the father was tainted with fraud and the son was cognizant of this, or participated in the fraud, then the plaintiffs ought to have so alleged. The al- legation that the defendant Joyce had knowledge of "the nature of said Sterling Gentry's title" at the time he purchased, is so indefinite as that it has neither force nor point. The complaint is vague, uncertain and indefinite, and it is difficult to determine whether the action was brought to recover the possession of the land, treating the sale in equity as void, or whether the object is to impeach the decree therein for fraud. But be this as it may, ■956 PARTIES. [Cll. 11. in the absence of a denial of what is alleged, we have a painful apprehension that a flagrant fraud was practiced by some person or persons upon the plaintiffs, while they were infants, and, in an important sense, in contemplation of law, under the care and pro- tection of the court. As it now appears to us, to say the least, the court was not circumspect ; it allowed itself to be imposed upon by designing and dishonest persons in a respect and about a matter wherein it ought to have given special and careful attention. This is another sad illustration of the loose and careless practice that too generally prevails in the courts, of allowing guardians ad litem and next friends of infants to be appointed almost as of course, upon a suggestion, and frequently without that, who, however careless and faithless as to the trust reposed in them, are by implication recognized, and must in the nature of judicial proceedings be treated as recognized by the court. It is the duty of courts to have special regard for infants, their rights and in- terest, when they come within their cognizance. The law makes this so, for the good reason, they cannot adequately take care of themselves. It is a serious mistake to suppose that a next friend or a guardian ad litem should be appointed upon simple sug- gestion; this should be done upon proper application in writing, and due consideration by the court. The court should know who is appointed, and that such person is capable and trustworthy. The appointment of guardians ad litem and their duties are pre- scribed by statute. The Code, see. 181. But while the statute (sec. 180) allows infants to sue by their next friends, the manner of the appointment of them and their duties are left as at common law. As to their appointment, Tidd in his work on Practice says, at page 100 .- "To constitute a prochein amy or guardian, the per- son intended, who is usually some near relation, should come with the infant before the judge at his chambers, or else a petition should be presented to the judge on behalf of the infant, stating the nature of the action, and, if for the defendant, that he is ad- vised and believes he has a good defense thereto, and praying in respect of his infancy that the person intended may be assigned him as his prochein amy, or guardian, to prosecute or defend the action. This petition should be accompanied by an agreement signifying the assent of the intended prochein amy, or guardian, and an affidavit made by some third person that the petition and agreement were duly signed. On being applied to in either of these ways, the judge will grant his fiat, upon which a rule or order should be drawn up and filed with the clerk of the rules in the King's Bench, for the admission of the prochein amy, or guardian," etc. 2 Arch. Pr. 154, 2 Sell. Pr. 65, Appendix (Forms) 504; Story's Bq. PI. sec. 57, 58, and note. It would have been better if such practice, or the substance of it, had prevailed in this state from the beginning, but a loose practice has been rec- ognized and pursued by the courts, and we cannot now disturb rights that have been acquired under it. If the strict methods PAETIES. 957 in this respect of the English courts had prevailed, it could scarcely be possible that calamitous cases, like this seems to be, and many similar ones that have come before this court, and many that have not, could happen. This evil, in the future, may be easily and thoroughly corrected. We think the court erred in overruling the demurrer. If the action was brought to recover possession of the land, the complaint states facts showing the title thereto in the defendants; if it may be treated as an action to impeach the decree directing a sale of the land for partition, there is no sufficient allegation that the de- fendants were in any way connected with or had knowledge of the procurement of the sale so as to affect the validity of their title. So the complaint, as it stands, "does not state facts sufficient to constitute a cause of action," and the demurrer ought to have been sustained. There is error. But the court, in overruling the demurrer, granted leave to the defendants to answer over, and to the plaintiffs to amend the complaint. . . . The ease will be remanded with instructions to reverse so much of the judgment as overrules the demurrer, and to enter judgment sustaining the same, and dismissing the action, unless the plaintiffs avail them- selves of the leave granted to amend the complaint, in which case the action will proceed according to law. It is so ordered. Ee- versed. Persons having any interest, real or nominal, antagonistic to that of the infant, must not he selected to prosecute or defend on hehalf of such Infant. George v. High, 85 N. C. 113. A plaintiff, though he be but a mere nominal party with no real interest in the controversy, must not act as guardian ad litem for an infant defendant. Ellis v. Massenburg, 126 N. C. 129, 35 S. E. 240. The plaintiff's attorney must not advise or draw pleadings for the guardian ad litem of an infant defendant. Moore V. Gidney, 75 N. C. 34. For the present law of North Carolina governing the practice when infants are plaintiffs or defendants, see Pell's Rev. sees. 405-407, where all the important rulings are briefly but clearly stated. See also "Rules of Practice in the Superior Court," 140 N. C. 683, 53 S. E. xiv, Rules 15-18. The court in which the action or pro- ceeding is pending appoints a next friend or guardian ad litem. Mor- decai's L. L. 400, n. 17. A justice of the peace may appoint a next friend for ah infant to the end that he may prosecute an action on behalf of the infant in such justice's court. Houser v. Bonsai, 149 N. C. 51, 62 S. E. 776. See further, as to next friend and guardian ad litem, Mor- decal's L. L. 404-405, 89-90. For validity of the payment of a judgment to the next friend of an infant, see 140 N. C. 683, rule 15; 11 L. R. A. (N. S.) 913, and note; for right of the next friend and guardian ad litem to compromise, see 21 lb. 338, and note. See "Infants," Century Dig. § 92; Decennial and Am. Dig. Key No. Series § 41. WHITE V. MORRIS, 107 N. C. 92, 98, 99-101, 12 S. E. 80. 1890. How to Proceed When There are Infant Defendants. Infant Appearing 'by Attorney. [Mary White sued the defendants, who were infants, for the re-execu- tion of a deed which, she alleged, had been made to her by the ancestor of such infants, but which had been lost before being registered. There 958 PARTIES. [Ch. 14. "was a judgment according to the prayer of the complaint. The infants, having arrived at age, moved in the cause to set aside such judgment on the ground that it was irregular and void. Motion overruled, and defendants appealed. Affirmed.] Davis, J. ... In this ease the defendants insist that the judgment was irregular and void, upon several grounds. The tirst is that there was no personal service on the infants. For- merly an infant was brought into court just as any other defend- ant was. If he had a general guardian, process was served upon the guardian ; if there was no general guardian, the court acquired jurisdiction by service of process upon the infant, and appointed some suitable person — frequently some officer of the court — as guardian ad litem, who accepted service, and defended for him; but since the Code of Civil Procedure (section 217) the service upon a minor under the age of 14 years must be upon him per- sonally, and also his father, mother, or guardian, or, if there be none in the state, then upon any person having the care and con- trol of such minor, or -with whom he shall reside, or in whose service he shall be employed. In the present case, process was not served upon the defendants personally, as was required, but upon their grandfather, with whom they lived. . . In Mar- shall V. Fisher, 1 Jones, (N. C.) Ill, it is said that a judgment against an infant appearing by attorney, though erroneous, "is of full force and effect until it be reversed," and the objection, says Pearson, J., could only be taken advantage of by a writ of error. As writs of error are now abolished in civil actions, and appeals substituted therefor, (Code, § 544 et seq.,) it can now be only by an appeal. See, also, Turner v. Douglass, supra. The defendants rely .upon Stancill v. Gay, 92 N. C. 464; Larkins v. Bullard, 88 N. C. 35 ; and Perry v. Adams, 98 N. C. 167, 3 S. E. Rep. 729. There is a very clear distinction between those cases and this. In them, there was no service of process at all on any- body, no guardian ad litem appointed to protect their rights, and no answer by any one of them; and the curative act of 1879, neither by its letter nor spirit, was intended to make the proceed- ings and judgments valid in such cases. In Perry v. Adams, the present chief justice said: "The object of the curative statute is to cure the judgment and proceeding, when such personal service was omitted, but it does not embrace cases where no service was made upon the infant, or any other person in his behalf, as the statute requires to be done." In the case before us, there was service upon the grandfather of the infants, with whom they lived, and an appearance and answer for them. The defendants say, secondly, that there was no evidence be- fore the court to support the finding of fact that "W. L. Reid filed an answer as guardian ad litem for the defendants, or of his appointment as guardian ad litem." The recitals and facts ap- pearing in the record constitute evidence in themselves to support the finding, and this objection cannot be sustained. The law is PARTIES. 959 «areful in protecting the rights of infants, and when thej^ are brovight within the jurisdiction of the courts, by proper or suffi- cient process, a guardian ad litem should be appointed for them, who shall, "if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants," and the requirements of the Code, § 181; and the present chief justice said, in Ward v. Lowndes, 96 N. C. 378, 2 S. E. Rep. 591: "This statute should be strictly observed, but mere irregularities in observing its provisions, not affecting the sub- stance of its purpose, do not necessarily vitiate the action or spe- cial proceeding, or proceedings in them." In Williamson v. Hart- man, 92 N. C. 239, it is said: "Generally a judgment will be set aside only when the irregularity has not been waived or cured, and has been or may be such as has worked, or may yet work, serious injury or prejudice to the party complaining interested in it." While, as has been said, the courts will always be careful of the rights of infants, it will not set aside irregular judgments against them as a matter of course; and, before doing so, it ought to appear from the record or otherwise that the infant has suf- fered some siibstantial wrong or injury. Of course it may be impeached for fraud, and will also be set aside if void. . . . Judgment affirmed. See "Infants," Century Dig. §§ 257, 304; Decennial and Am. Dig. Key No. Series §§ 89, 105. ROSBMAN V. ROSEMAN, 127 N. C. 494, 498, 37 S. B. 518. 1900. Service of Summons on Infants. Claek, J. . . The last objection is as to service of sum- mons upon the children of Mrs. Newsom under 14 years of age. Summons was served by delivering a copy to each of them per- sonally, as prescribed by Code, § 217(2). A guardian ad litem was regularly appointed. Summons was served upon him, and he filed answer. The statutory requirement has been sufiS.ciently complied with. The objection that a copy of the summons was not also left with the "father, mother, or guardian" is a refine- ment, and cannot invalidate the judgment when a guardian ad litem has been duly appointed, and has filed answer, and there is no suggestion of fraud; most especially when (as in this instance) the motjier is a party to the action, has filed her answer consenting to the only relief 8.sked, the appointment of a substituted trustee, and has filed a consent judgment. Affirmed. A copy of the summons must be served upon the infant and also upon his father, mother or guardian, etc., only when the infant is under the age of fourteen. Rev. sees. 439, 440 (2), and Pell's notes thereto. An infant cannot lawfully accept service of process; but if he does accept service and a guardian ad litem is thereafter appointed who properly represents him, such defect in the service of the process is cured. Pell's Rev. p. 171. See "Infants," Century Dig. §§ 255-264; Decennial and Am. Dig. Key No. Series § 89. 960 PARTIES. [Ch. 14. DEAL V. SEXTON, 144 N. C. 157, 56 S. E. 691. 1907. Infant in Ventre sa Mere as a Party. [Ejectment by a plaintiff who was in Ventre sa mere at the time the locus In quo was sold by order of court for partition. The defendant's title was based upon such sale. The plaintiff, being in ventre sa mere at the time of the commencement of the proceedings for partition and at the time of the sale, was in no manner made a party to such proceed- ings. The question presented is: Are infants in ventre sa mere es- topped by judicial sales of realty in which they have a vested interest, they not being parties to such proceedings?] Brown, J. . . The question presented upon this appeal is important and perplexing, because of the fact that the defend- ant is a purchaser for value, and because of the great difficulty in purchasers at such judicial sales protecting themselves, having no Imowledge of the existence of an unborn child in its mother's womb. If we hold, as we must, that the inheritance vested imme- diately in the plaintiff, while en ventre sa mere, upon the death of the father, the conclusion must follow that such inheritance ought not to be divested and the child's estate destroyed by judi- cial proceedings to which it was in no form or manner a party, and for which not even a guardian ad litem was appointed. It may be that our civil procedure is defective in not providing for such con- tingencies, but that is no reason why the vested estate of the un- born child in esse should be taken from it. The general rule in this country and the acknowledged rule of the English law is that posthumous children inherit in all cases in like manner as if thej^ were born in the lifetime of the intestate and had survived him, and for all the beneficial purposes of heirship a child en ventre sa mere is considered absolutely bom. This has been the recog- nized law of this state since Hill v. Moore, 5 N. C. 233, decided in 1809, down to Campbell v. Everhart, 139 N. C. 503, 52 S. E. 201, decided in 1905. It is also recognized generally by the text- writers and judicial decisions in other states. Kent's Com. (].3th Ed.) vol. 4, p. 413; Washburn on Reap Property '(5th Ed.) vol. 3. page 16 ; Tiedeman on Real Property, § 673 ; 14 Cyc. 39, where the decisions are collected. The statiite law of this state treats the unborn child in its mother's womb with the same consideration as if bom. By the seventh canon of descent (Revisal of 1905, § 1556), a child born with 10 lunar months after the death of the ancestor inherits equally with the other children. By section 1582, an infant unborn, but in esse, is rendered capable of taking by deed or other writing any estate whatever in the same manner as if he were bom. Campbell v. Everhart, supra. Prom most remote times the common law of England regarded such child as capable of inheriting direct from the ancestor as much so as if bom. Doe v. Lancashire, 5 T. R. 49; Thelluson v. Woodford. 4 Vesey, Jun., 227 ; Harper v. Archer, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 474, where all the cases are collected. The old writ PARTIES. 961 of de ventre inspiciendo was devised by the courts for the pur- pose of examining the widow, and was granted in a case where a widow, whose husband had lands in fee, marries again soon after his death and declares herself pregnant by her first husband, and under that pretext withholds the land from the next heir. Such writ commanded the sheriff or sergeant to summon a jury of 12 men and as many women, by whom the female is to be ex- amined "tractari per ubera et ventrem. " 1 Black. Com. 456; Viner's Ab. vol. 21, p. 546. Of course, no such unseemly pro- ceeding would be tolerated in this age, but the General Assembly could easily protect the unborn child as well as the innocent pur- chaser by prohibiting the sale of land for partition until 12 months after the intestate's death. The question as to the status of the purchaser was considered by the supreme court of Kentucky, in the ease of Massie v. Hiatt's Adm'r, 82 Ky. 314, in which it is held: (1) A child born within 10 months of the death of the intestate is entitled to a share in his estate, as if bom and in being at the time of intestate's death. (2) The court had jurisdiction to sell the land on the petition of the guardian of the two other children ; but the sale affected only their rights. The right of the imborn child could not in any wise be affected. (3) Having an interest in the land, she could not be deprived of it by any proceeding to which she was not a party, and may recover such interest from a remote vendee of the pur- chaser at the judicial sale. The supreme court of Illinois reaches the same conclusion, and says that a person must have an oppor- tunity of being heard before a court can deprive him of his rights, and that an unborn child, not having been made a party, can re- cover from those claiming his title, as his rights are not cut off by the decree. Botsford v. O 'Conner, 57 111. 72. The case of Giles V. Solomon, in New York, 10 Abb. Prac. (N. S.) 97, note, is very much in point. In that case a bill to foreclose a mortgage executed by the deceased father was filed in January, 1841. A daughter was bom to his widow in April, 184], two days after foreclosure decree was entered. The daughter, not being a party to the foreclosure proceedings, brought her action in 1866 to re- deem. The court held she was not barred by the decree of 1841, and permitted her to redeem her one-seventh by paying one-seventh of the mortgage and interest, and charged the purchaser with back rents. In South Carolina at one time the courts declined to proceed with a suit to partition the property of the ancestor until 12 months after his death, so as to avoid the possibility of entering judgment which might conflict with the rights of an unborn child. As there was no statute on the subject, the courts of South Carolina discontinued this practice for some reason, and then held that a child en ventre sa mere must be regarded as a person in being who could not be bound by a judgment in parti- tion to which he was not a party. Pearson v. Carlton, 18 S. C. 47. It is true that Judge Freeman, in his elaborate note to Carter v. Remedies — 61. 962 PARTIES. [Ch. li. White, 101 Am. St. Rep. 869, 870, repudiates this doctrine, and saj's: "It is believed, however, that the rule cannot prevail, and that such a child must be regarded as not in being for the purpose of the suit, and as being represented by the parties before the court," etc. The authority cited by the learned annotator is the opinion of the supreme court of the United States in Knotts v. Stearns, 91 U. S. 638, 23 L. Ed. 252, which seems to sustain him. The fallacy in the position seems to us to be in supposing that the living children can represent the unborn child. It is not a case oO class representation. The interests are conflicting, and not mutual. It is to the interest of the living heirs to make the divi- sion as short as possible, and therefore to keep out the heir who has not yet made his appearance. The cases of Ex parte Dodd, 62 N. C. 97, and many similar cases, to Springs v. Scott, 132 N. C. 548, 44 S. E. 1 16, have no application here, as the object of a partition proceeding is to dissever the interests of the parties, and there is no clai^ representation about it. The tenant in com- mon who is not made a party personally, or by guardian ad litem, or in some legal way, is not bound by it. In the forcible language of counsel for plaintiff in their brief: "If the court could take what the law said was hers and sell and convey to an- other without her even having knowledge of it, or representation, our boasted 'process of law' doctrine is irridescent — a constitu- tional hallucination." Affirmed. See further, on the subject of the principal case, 16 Am. & Eng. Enc. L. 260; 31 Am. Rep. 20; 8 Rose's Notes, 744, and 1 Supplement to Rose's Notes, 1147. See "Judgment," Century Dig. § 1213; Decennial and Am. Dig. Key No. Series § 690. GREGORY V. PAUL, 15 Mass. 31. 1818. Married Women as Parties Plaintiff and Defendant. [Deborah Gregory sued Paul, as executor of Charles Warburton, to recover a legacy given to her by the will of Warburton. The defendant pleaded in abatement the coverture of the plaintiff and that her hus- band was living and resided in Great Britain. The plaintiff replied that she had been deserted by her husband before this action was brought; that she had supported herself as a single woman for five years preced- ing the action; and that her husband was an alien who never, had been within the United States. To this replication the defendant demurred, and the plaintiff joined in the demurrer. Demurrer overruled.] Putnam, J. ' It appearing from the pleadings that the plaint- iff's husband was living at the commencement of this suit, the writ must be abated, unless the reasons contained in the replica- tion are sufficient to entitle the plaintiff to sue as feme sole; for the general rule of law is very clear, that the wife cannot sue alone, but must join with her husband ; and that a gift or legacy to the wite, and even the rewards of her personal labor, during the coverture, vest in the husband, and he may release them. In PARTIES. 963 deed, the. husband and wife are considered as one. Her will is merged in his; and the power which she might have had, as a feme sole, to make contracts, is suspended. For these disabilities she is liberally recompensed by the obligations which the marriage imposes upon the husband to provide for her support during the coverture, and by a claim for dower after its dissolution. She has also many exemptions from civil and criminal proness, to which he alone is liable, although both may have participaleu in the benefit of the contract or commission of the crime, during the continuance of the matrimonial connection. But the rule was anciently relaxed, from necessity, in cases where the reasons upon which it was formed ceased to exist. Thus, where the husband. Sir Thomas Belknap, was exiled, his wife was permitted to sue in her own name. And the same rea- son applying where the husband had abjured the realm, the wife, in that case, was allowed to sue, as a widow, for her dower. In such case, also, she has been permitted to alien her land without her husband. And she is, in ^uch cases, exempted from the dis- abilities of coverture. She may maintain trespass; she may sue for her jointure ; and she may be sued, also, as a feme sole. Du- bois V. Hale, 2 Vem. 614. • She may also make her will ; and, as the court well observed, she might in all things act as if her hus- band were dead ; cind that the necessity of the case required that she should have such a power. The wife of an alien enemy has also been held liable to suits, as the husband was not amenable to the process of the court. Derry v. Duchess of Mazarine, 1 Ld. Raymd. 147. Other cases have been considered as within the ex- ceptions to the general rule; as where husband and wife live sep- arately by agreement, he allowing her a separate maintenance; Lord Mansfield considering that, in such cases, the wife was liable, principally on account of the separate allowance for her support. But this class of cases has been overruled, in the year 1800, in the case of Marshall v. Button, 8 D. & E. 545; Lord Kenyon, who de- livered the opinion of the judges, observing that there is no au- thority in the books, "that a woman may be sued as a feme sole, while the relation of the marriage subsists, and she and her hus- band are living in this kingdom. ' ' This last case was twice argued before all the judges, excepting two ; and all who heard agreed to the opinion, as delivered by Lord Kenyon. It may also be ob- served, that this opinion was in conformity to that of the justices of the Common Pleas in the vear 1778. Lean v. Schutz, 2 Wm. B. 1195. But whatever difference may have existed as to the legal effect of a voluntary separation and maintenance, it has been uniformly considered that banishment or abjuration was a civil death of the husband. And the banishment of the husband, even for a limited time, operates a removal of the disabilities of the coverture, so far as to enable the wife to sue and be sued as a feme sole, although the time of banishment had expired when the action was brought. 964 PARTIES. [Gh. 14. Newsome v. Boyer, 3 P. W. 37. Thus, where the husband was attainted of felony and transported, but was afterwards pardoned, and, after the pardon, a share of an estate descended to the wife, it was decreed to her, it not appearing that the husband had re- turned after the pardon — yet there was no lawful cause to prevent his return. And the facts and circumstances which should be considered as proof of having abjured the realm, have been lib- erally regarded. Thus, where the husband resided abroad, leav- ing his wife to trade and gain credit as a feme sole, this has been considered as sufficient to entitle her to obtain credit, and to ren- der her liable to be sued, as a feme sole. De Gaillon v. L'Aigle, 1 B. & P. 357. This case was much like that at bar; for it did not appear that the husband was ever in England, or intended to go thither. He could not complain if his wife should be taken and imprisoned for debt, for he had renounced her society. Upon the same reasoning, the case of Walford v. The Duchess de Pienne, 2 Esp. 554, was decided. The duke was a foreigner, who left England in 1793, with an intention of returning soon. The suit was commenced in 1797 ; the court held that his absence, thus con- tinued, should be considered as a desertion of the wife, and as suf- ficient to enable her to contract on her omti account. Kay v. Duchess de Pienne, 3 Camp. 123. And the law is the same, when applied to her situation as plaintiff. In a late case, where the term for which the husband was transported had expired, the wife was permitted to sue as if unmarried; the defendant not proving that her husband had returned. Carroll v. Bleneow, 4 Esp. 27. Miserable, indeed, would be the situation of those unfortunate women whose husbands have renounced their society and country, if the disabilities of coverture should be applied to them during the continuance of such desertion. If that were the case, they could obtain no credit on account of their husbands, for no process could reach him, and they could not recover for a trespass upon their persons or their property, or for the labor of their hands. They would be left the wretched dependents upon charity, or driven to the commission of crimes, to obtain a precarious support. Nor does the late decision, cited by the counsel for the defendant in this action. 11 East, 303, militate with the principles I have stated. The wife, in that case, was not permitted to sue as a feme sole, although the husband had gone beyond sea without making any provision for her support. But it was admitted by the demurrer, that the husband was born within the realm, was then a subject, had not been banished, and had not abjured. His absence, under such circumstances, might be considered as temporary, and of course, as not varying the rights of the husband or the wife. The case at bar comes within the spirit of the rule of the com- mon law, founded in reason and necessity, in eases of exile and abjuration. The plaintiff has been domiciled here many years as a feme sole. Her husband is an alien, and never was, and is not expected ever to be, in this country. He abandoned his wife, and PARTIES. 965 for a great number of years made no provision for her support in his own country. He has not, it is true, abjured his country ; but he has compelled his wife to abjure it. This should not make the ease better or worse for her. If the husband had been a native citizen, and had deserted his wife, and become a subject of a for- eign state, the law would be clear for her, upon the adjudged cases. We are satisfied that the plaintiff may acquire property, and be permitted to sue, and is liable to be sued, as a feme sole; and that her release would be a valid discharge for the judgment she may recover. The replication is adjudged good, and a respondeat ouster is awarded. That a married woman, whose husband is an alien who never was in the United States, stands upon the footing of a feme sole for purposes of bringing and defending actions, etc., see Levi v. Marsha, 122 N. C. 565, 29 S. E. 832, which approves the principal case. See "Husband and Wife," Century Dig. §§ 738-743; Decennial and Am. Dig. Key No. Se- ries § 203. SACKETT v. WILSON, 2 Blackford, 85, 86. 1827. Marriage of a Feme Sole Party Pendente Lite. [Sackett sued Wilson, as executrix. The defendant was a feme sole when the action was commenced, but she married while the action was pending. The plaintiff suggested the marriage and moved that the de- fendant's husband be made a party, which motion was overruled. The judge dismissed the plaintiff's action, and the plaintiff appealed. Re- versed.] Blackford, J. . . The court correctly overruled the mo- tion to make the husband a party ; that could only be done by scire facias. But the plaintiff was not obliged to proceed against the husband. Upon the failure of his motion to. make the husband a party, he offered to proceed in the cause against the defendant alone. This we conceive he had a right to do. The marriage of the feme defendant did not in any respect affect her liability. At the commencement of the action, she was a feme sole ; and she could not by taking a husband, abate the suit, or prevent its pro- gressing against her alone. Chit. PI. 45; Hamm. on Part. 227(2). The circuit court, therefore committed an error in dismissing the suit. Judgment reversed. The ruling of the principal case is given in 2 Bish. on the Law of Mar. Wom., sec. 310, where several authorities to the like effect are cited. See "Abatement and Revival," Century Dig. §§ 182r-190; Decen- nial and Am. Dig. Key No. Series § 34. WARD V. WARD, 17 N. C. 553. 1834. Married Women as Parties in Equity. [Mary Ward, being entitled to a separate estate under a marriage set- tlement, filed a bill against her husband, Seth Ward, and others, for the removal of the trustee in the deed of settlenjent, for an account, and for the securing of the trust fund. Demurrer, on the ground that the plain- 966 PARTIES. [Ch. 14. tiff being a feme covert she could not sue alone. Demurrer overruled, and defendants appealed. Reversed.] Daniel, J. A feme covert having a separate estate may, in a court of equity, be sued as a feme sole, and be proceeded against without her husband; for in respect of her separate estate she is looked upon as a feme sole. In Dubois v. Hale, 2 Ver. 614, Mr. Raithby, the annotator, has collected and digested all the authori- ties on this question. In a court of equity, baron and feme are considered as two distinct persons and therefore a wife, by her prochein amy, may sue her gwh husband. The question to be settled on this demurrer is, can she sue alone, in forma pauperis. The courts of equity, as well as the courts of law, permit persons to sue in forma pauperis, when proper affidavits are made. 2 Mad. Ch. 256. But I can find no case where a wife has been permitted to sue her husband in that character. I cannot find any case, where the wife has been permitted to sue alone in a court of equity. "Where the husband is made a party defendant, the invariable practice is, for the feme covert to sue by her pro- chein amy. The rule is established, I suspect, not only to secure costs, but to have a responsible person who would be liable if the process of the court should be abused, and also that a proper and fit adviser might interpose to prevent domestic feuds, and at the same time protect the feme from the frauds and power of the husband. 3 P. Wms. 39. The plaintiff asks leave to amend her bill by adding a prochein amy. This is an appeal under the late act of assembly, from an interlocutory decree. This court has no power to make any order or decree in the cause, except on the point appealed from. We are of opinion that the court below erred in overruling the demurrer; it should have been sustained. Decree overruled. "In no case need she prosecute or defend by a guardian or next friend." Revisal, sec. 408 (2). See "Husband and Wife," Century Dig. § 744; Decennial and Am. Dig. Key No. Series § 203. MANNING V. MANNING, 79 N. C. 293, 297, 28 Am. Rep. 334. 1878. Married Women as Plaintifts Under the Code Practice. [Caroline Manning sued her husband to recover her real estate from him and for damages caused by his appropriation of the rents and profits of her lands. Defendant demurred on the ground that his wife could not sue him. Demurrer overruled, and appeal by defendant. Af- firmed on this point. Only so much of the opinion as discusses the right of the feme plaintiff to sue, is here inserted.] Bynum, J. ... It seems now to be generally settled, after great confusion in the decisions growing out of the conflicting statutes of the several states, that a married woman is invested with the legal title to her property, and may maintain in her own name any appropriate action to preserve and secure it to her PARTIES. 967 own use. Miller v. Bannister, 109 Mass. 289; ]0 Kan. 56; 19 Iowa, 236; 2 Bish. L. M. W. sees. 130, 131, where the authorities on both sides of the question are cited. In this state, by statute, the wife may sue alone in two eases, — first, where the action con- cerns her separate property, and second, where the action is be- tween herself and her husband; in all other cases where she is a party her husband must be joined with her. C. C. P. sec. 56. No difficulty is therefore presented as to the parties to the action. The demurrer admits the facts set forth in the complaint and the single question is — do they present a cause of action? The relief demanded is: First, the possession of the land, and second, damages for withholding the rents and profits. "We think the plaintiff is entitled to both — to be let into possession, and to damages against the husband for appropriating to his own use, against her consent, the rents and profits. . . . The principal case is approved in Perliins v. BrinWey, 133 N. C. at p. 159, 45 S. E. 541. See "Husband and Wife," Century Dig. § 738; De- cennial and Am. Dig. Key No. Series § 203. VICK V. POPE, 81 N. C. 22, 25. 1879. Married Women as Defendants Under the Code Practice. [Plaintiff sued "William Pope and his wife on a note executed by them jointly, during the coverture, for the debt of the husband — which note contained no clause charging it upon the wife's separate estate. Both defendants were served with the summons. No defense being inter- posed, judgment was rendered against both defendants and an execution issued. The feme defendant then moved to set aside the judgment. The above facts were found by the judge upon the hearing of the motion. The judgment was vacated and plaintiff appealed. Reversed. After disposing of the contention that the feme defendant was entitled to re- lief on the ground of mistake and excusable negligence, the opinion proceeds:] Smith, C. J. The second point made is that the pro- ceeding in the action is irregular, and the judgment erroneous, and as such liable to be set aside. The new system of practice requires that "when a married woman is a party, her husband must be joined with her," except that, first, "when the action concerns her separate property she may sue alone," and sec- ondly, "when the action is between herself and her husband, she may sue alone, and in no case need she prosecute or defend by a guardian or next friend." C. C. P. sec. 56. The summons must be served on the husband, as well as on the wife, when the action is intended to subject her or her separate estate to liability ; and he is allowed on motion, and with her eon- sent, which we must assume to have been given to warrant the action of the court, and because no suggestion to the contrary appears in the affidavit, "to defend the same in her name and behalf." Bat. Eev. ch. 69, sec. 15. 968 PARTIES. [Ch. 14. It is manifest that to her husband's management and protec- tion are entrusted the interests of the wife in an adversary suit, and in the absence of collusion or fraud on his part with the plaintiff, the judgment must be conclusive as to antecedent mat- ters, and as effectual as in other cases. More especially must this be so, since the law dispenses with a guardian or prochein amy, and now leaves to them alone to set up and establish any defense that either may have against the plaintiff's demand. If it were otherwise, how could a valid judgment ever be obtained against a married woman, and how could her liability be tested? If she is disabled from resisting a false claim, how can she prose- cute an action for her own benefit, when nothing definite is de- termined by the result? It is no sufficient answer to say that the defendant 's execution of the note with her husband did not bind her. The judgment conclusively establishes the obligation, and such facts must be assumed to exist as warranted its rendition, inasmuch as neither coverture nor any other defense was set up in opposition to defeat it. As then a married woman may sue and with her husband be sued on contracts, they and each of them must at the proper time resist the recovery as other defendants, and their failure to do so must be attended with the same conse- quences. The duty of making defense for both or for either now devolves upon the husband alone, and he must employ counsel to make such defense effectual and in proper form. 3. An appearance by attorney for both the husband and wife is legal and proper, and, therefore, says Taylor, C. J., "if an action be brought against a husband and wife, if the husband appear by attorney, he shall enter an appearance for both ; ' ' and he adds, that this may be done when the wife is under age, ' ' be- cause the husband may by law make an attorney and appear both for himself and wife." Frazier v. Felton, 8 N. C. 231. "Mar- ried women," says Ruffin, J., in a ease where relief was sought in the court of equity, ' ' are barred by judgments at law as much as other persons with the single exception of judgments allowed by the fraud of the husband in combination with another;" and referring to the allegation of its injustice and wrong, he adds, ' ' That ,was a thing that might have been shown on the trial at law, and, therefore, cannot itself be heard now. She must charge and prove that she was prevented from a fair trial at law by collusion between her adversary and her husband, preceding or at the trial." Green v. Branton, 16 N. C. 504. The present application has in it no such meritorious element as would have entitled the feme defendant to relief in equity, and it does not call for nor authorize the interposition of this court, in the manner proposed. It is true an irregular judg- ment, not taken according to the course of the court, may be set aside and reformed at any time as has been often held. Keaton V. Banks, 32 N. C. 381 ; Monroe v. Whitted, 79 N. C. 508, and numerous other cases. While the judgment sought to be set PARTIES. 969 aside is neither erroneous nor irregular, if it were irregular, the motion should have been made in a reasonable time, and not after its transfer to an innocent holder for full value with noth- ing upon its face nor in the record to indicate any infirmity. Winslow V. Anderson, 20 N. C. 1. We think, therefore, the rul- ing of the court was not warranted by any facts contained in the affidavit, and the judgment ought not to have been disturbed for any of the causes assigned. Reversed. To what extent the principal case Is shaken by subsequent decisions, see McLeod v. Williams, 122 N. C. 451, 30 S. B. 129, and Roseman v. Roseman, 127 N. C. 494, 37 S. E. 518; McAfee v. Gregg, 140 N. C. 448, 53 S. E. 304. For the statute law of North Carolina regulating the prac- tice when a feme covert is a party, plaintiff or defendant, and the in- terpretation of such statutes, see Pell's Revlsal, sec. 408, and notes. See "Husband and Wife," Century Dig. §§ 836, 856; Decennial and Am. Dig. Key No. Series §§ 230, 239. DORSHEIMER v. ROORBACK, 18 N. J. Eq. 438. 1867. Lunatics as Parties. ["This was a motion on the part of the defendant to order the bill to be taken from the files, on the ground that the complainant was an idiot, and the bill was filed in her name by one Couse, as her next friend, he not having been appointed her guardian upon inquisition found, or been authorized by this court in this case to file the bill as her next friend."] The Chancellor. The motion is made by the defendant, and not on part of the idiot, or any one in her behalf. But in this case, where it is alleged in the bill that complainant is an idiot a nativitate, and unable to manage her affairs, and sues by a per- son calling himself her next friend, without any appointment, if the proceeding is not according to law, and not binding on the idiot, the defendant must make this motion to protect himself from being obliged to defend a suit brought without authoritj' Idiots and lunatics may sue at law by next friend, to be ap- pointed by the court; but in equity, must sue by the committee or guardian of their estates duly appointed. When the idiocy or lunacy is not partial, and in all cases, when it has been found on an inquisition, a court of equitj'' , will not allow a suit to be brought by an idiot or lunatic in his own name, or that of a next friend, nominated by himself, or appointed by the court; his guardian or committee must join in the suit. When a person is only partially incapable, as one merely deaf and dumb, the court will appoint a next friend to be joined with him in the suit, and to conduct it for him. The authorities all agree that idiots and lunatics must sue in equity iy their committees or guardians. In this state, the per- sons to whom the estates of idiots and lunatics are committed upon inquisition found, are styled their guardians: in many of 970 PARTIES. [Ch. li. the other states, and in England, they are called their committees. Shelf ord on Lunatics, 415, says: "Idiots and lunatics must sue in courts of eciuity by their committees. ' ' In Storv 's Eq. PL sec. 64 ; 1 Dan. Ch. Pr. (3rd Ed.) 79; Stock on Non' Compotes Mentis, 33; Mitford, Eq. PI. 29, and 2 Barb. Ch. Pr. 224. the same rule is laid down ; and it is further stated by some of these authorities, that a suit ought not to be brought, even by the committee, with- out the direction of the court, upon an inquiry made, whether it is for the benefit of the idiot or lunatic. I find no case or au- thoritj' in «hieh it is held that they may sue by a next friend, either a volunteer or appointed for the purpose. The only sem- blance of authority found, is the passage in Shelford, 416, and copied in 1 Dan. Ch. Pr. 81 : "If a person exhibiting a bill, appear upon the face of it to be either an idiot or a lunatic, and no next friend or committee is named in the bill, the defendant may de- mur." Daniell cites Fuller v. Lance, 1 Ch. Cas. 19, which has nothing in it on this point. Shelford cites Mitford on PI. 153, which says: "If an infant or a married woman, an idiot or a lunatic, appear to be such on the face of the bill, and no next friend or committee is named, the defendant may demur. ' ' Lord Redesdale evidently intends to refer singula singulis, and does not mean to imply that a next friend is proper for an idiot or lunatic, any more than that a committee is necessary for an infant or feme covert. This passage has been adopted by the other writers, with- out noticing that the words "next friend" were not applicable to the subject of which they were then treating — idiots and lunatics. The rule is a wise one. It should not be permitted that any volunteer should, by styling himself the next friend of an idiot, bring a suit for him, and lose or jeopard his rights by an action brought inopportunely, and it may be, prosecuted without skill or honesty. The idiot A\'ould have no security for the amount re- covered by such next friend, and the defendant could not pay him, or settle with him, safely. The motion to take the bill from the files must be granted. "We think it well settled that where there has been no inquisition the lunatic may sue by next friend. The jurisdiction is expressly rec- ognized and upheld by English chancery courts. See Beall v. Smith, L. R. 9, ch. 85, 91; Jones v. Lloyd, L. R. 18, Eq. 265, 274, 275. In the latter case Jessel, M. R. said: 'Can a suit be instituted by the lunatic, not found so by inquisition, by his next friend? I have no doubt it can. There is authority upon the subject, and it seems to me so distinct that I have no occasion really to refer to the reasons, for I think the cases of Light v. Light, 25 Beav. 248, and Beall v. Smith, L. R. 9, ch. 85, are such authorities; but, independently of the unreported case of Fisher v. Melles, where I know the point was discussed, and, independently of authority, let us look at the reason of the thing. If this were not the law, anybody might, at his will and pleasure, commit waste on a luna- tic's property, or do damage or serious injury and annoyance to him or his property without there being any remedy whatever.' To the same effect is Busw. Insan. sec. 120, where it is said that 'when a person is in fact, insane, iut has not 'been so adjudged by a competent tribunal, or placed in charge of a committee or guardian, the courts, whether of PARTIES. 971 law or equity, have jurisdiction to entertain suits 'brought by one as the next friend of the insane person.' These authorities are decisive against the defendant upon the question of jurisdiction." Smith v. Smith, 106 N. C. at p. 503, 11 S. B. 188. "First a motion is made by defendants to dismiss the bill, because it is brought in the name of 'Daniel Shaw, guardian of Penelope Green, etc.,' when it should have been brought in the name of the lunatic, by Shaw, as her committee. Actions at law, in behalf of lunatics, can be brought in no other name than theirs; they must not be brought in the name of the committee. Stock on Non Compos Mentis, 33; Cocks v. Darson, Hob. 215; Nay, 27; Pop. 141. And they appear by guardian or attorney, according as they are within age or not. Ibid. But, in equity, this incapacity to sue or defend is more considerable. In this court, after an inquisition has taken place, and a committee has been ap- pointed, the joinder of the name of the lunatic, though usual, is merely a formality. Stock, 33; Wyatt's Pr. Reg. 272; Ridler v. Ridler, 1 Eq. Cas. Ab. 279; Ortley v. Messere, 7 John. Ch. 139; Calvert on Parties, 303. In England, the practice is to bring the bill in the name of the committee, as is done in the present case. Either way will be good. The motion is therefore overruled." Shaw v. Burney, 36 N. C. at p. 150. The matter of appearance by parties non compos mentis — whether plaintiff or defendant — ^is now regulated by statute in North Carolina. See Pell's Revisal, sees. 405, 406, and notes. For actions by or on be- half of lunatics, sec. 2 L. R. A. (N. S.) 961, and note. See "Insane Persons," Century Dig. §§ 162-165; Decennial and Am. Dig. Key No. Series §§ 92-94. STUARD V. PORTER, 79 Ohio State, 1, 85 N. E. 1062. 1908. Lunatics as Parties. Service of Summons on Insane Defendants. Guardian as a Party. Venue. [Wood Stuard killed Horace G. Porter and, being acquitted of a charge of murder on the plea of insanity, was sued in the court of com- mon pleas, by the administrator of Porter, for damages "for the wrong- ful death of plaintiff's decedent." The action was brought against Wood Stuard and his duly appointed guardian Dal. P. Stuard. Dal. P. Stuard waived service of the summons and entered a general appear- ance. The summons was served on Wood Stuard and on the superin- tendent of the State Hospital for the Insane, in whose custody Wood Stuard then was. The service was by delivery of a copy to each of them. The sheriff made the service. Dal. P. Stuard demurred on the ground that there was a misjoinder of parties because both the insane person and his guardian were made defendants. Thereupon the plain- tiff, Porter, dismissed the action, entering a nol. pros., as to the guardian. Thereafter the guardian was permitted to withdraw his demurrer. He thereupon moved to quash the service of the summons which had been made on the insane defendant. Motion sustained. Thereupon an alias summons was issued and served just as the original had been served — except that the original was issued to and served by the sheriff of the county in which the State Hospital was located, and the alias was is- sued to and served by the sheriff of the county in which the insane defendant resided prior to his confinement in the State Hospital. This service of the alias was also quashed on motion of the guardian of Wood Stuard, and judgment rendered against Porter dismissing his ac- tion. Upon a petition in error the circuit court reversed their judgment and ordered the action to proceed. The Stuards then carried the case to the supreme court by writ of error. The judgment of the circuit court is affirmed.] Davis. J. . . The question to be determined is whether there wa.s a legal service of summons upon the insane defendant. 972 PARTIES. [Ch. 11. Wood Stuard, or if not, whether the court had obtained jurisdic- tion of his person through the guardian. Two facts must be, and practically are. conceded, viz., that Dal. P. Stuard is the legally appointed guardian of Wood Stuard, and that at the time of the appointment of his guardian both Wood Stuard and his guardian were residents of Morgan county. It cannot be presumed, from the circumstances of this case, that when the ward was removed to the state hospital in Athens county, there was any intention, on the part of himself or anybody else, to change the place of hir, legal residence. In fact the change of location was involuntary, and for a temporary purpose, and he was in law incapable of mak- ing a voluntary change of residence. In case of his recovery it is made the duty of the officers of the law to return him to his home in the county from which he was sent. Sections 709, 7243, Rev. St. 1908. These considerations lead to the conclusion that Wood Stuard not only was, but now is, a legal resident of Morgan county. The statutes of this state do not specifically prescribe any par- ticular method for service of summons upon an insane defendant. Ordinarily the service of summons upon a defendant would be by leaving a true copy of the writ at his usual place of residence, or by delivering a copy to the defendant in person. Neither of tlies(! modes of service was adopted in this case, and we are thus led to the inquiry whether the court of common pleas has acquired ju- risdiction of the person of Wood Stuard in any other manner. Waiving consideration of the proposition that the guardian ol an insane person is not a necessary party defendant in an action of this kind, it seems to us very clear that he is at least a proper party. Our Code of Civil Procedure, in the chapter entitled "Parties to Actions," provides that "the defense of an insane per- son must be by his legally appointed guardian," or in certain cases by a trustee for the suit, appointed by the court. Section 5000, Eev. St. 1908. Elsewhere our statutes (sections 6269, 6304. par. 5„Rev. St. 1908) makes it the duty of a guardian for a lunatic "to appear for and defend, or cause to be defended, all suits against such ward. ' ' Not only is the duty to appear for and defend distinguished by the statute from causing a defense to be made, but it would seem that the very act of appearing and defending would involve the necessity of filing all necessary pleadings in the case, and to do any of these required things implies notice to the guardian. No mode of notifying the guardian is provided. Can it be said to be illegal to serve him as a party with summons along with his ward ? The guardian cannot be a merely nominal party, lacking any substantial interest, in a controversy of this kind. His ward's estate is not bound by a debt or lien existing before the guardianship. The liability for a tort becomes a lien only from Lhe date of judgment and the plaintiff was not an ascertained creditor whom the guardian was bound to recognize in the admin- istration of his ward's estate. Evans et al. v. Lewis, 30 Ohio St. 11. The guardian was therefore not merely required by law to see PARTIES. 9T3 that a defense was made, but he was interested as a trustee, to the extent that it was his duty to see that the trust estate was not unduly burdened. Hence, if he was not a necessary party to the action, he was at least a proper party defendant; and so the au- thorities seem to hold. In 22 Cyc. 1224, the law is stated thus: "An insane person may be sued the same as a sane person. At common law the rule was the same after inquisition of lunacy and the appointment of a guardian or committee ; but now, if there be a committee or guardian, it is generally necessary to join him as a party defend- ant." In 10 Ency. PL & Prac. 1228, we find this: "If the party be under the management of a committee or guardian, service of process should be upon the committee, or upon both the committee and the lunatic." In 9 Ency. PI. & Prac. 935, we read the fol- lowing : ' ' Although it may not be necessary in all cases to make the guardian a party to an action or proceeding affecting the ward solely, yet it is usually proper to do so, that he may protect the ward 's interests. ' ' In Carter v. Burrall, 80 App. Div.' 395, 81 N. Y. Supp. 30, the court held that the committee of a lunatic, if he so elects, is entitled to come in and defend an action against his ward, and if he declines to do so, the plaintiff may apply for leave to make him a party defendant. The supreme court of Massachu- setts, in Whitcomb v. Jacobs, 9 Gray, 255, said that a guardian should be made a party to proceedings against the ward ; but the same court, in Taylor v. Lovering, 171 Ma.ss. 303, 50 N. E. 612, remarked that "this is not strictly true. He should have notice of the proceedings." This is, in effect, saying that it is not nec- essary to make the guardian a formal party, but the court does not go to the extent of saying that he would be an improper party. However, the court did hold that the court below, "on being in- formed that the defendant was an insane person, under guardian- ship in this commonwealth, properly ordered notice of the pend- ency of the action to be given to the guardian ; and, if the guard- ian had appeared in the action in the name of the defendant, this probably would have cured the want of service on the defendant. ' ' We shall refer to this further on. The supreme court of Illinois impliedly held that the guardian of an insane person, who had been made a defendant and served with process, was a proper party, because it held that, being made a party, he might take an appeal for the ward, notwithstanding the cause had been defended by a guardian ad litem, who might also have appealed. Sill v. Sill, 185 111. 594, 57 N. B. 812. Both the lunatic himself and his legally appointed guardian being residents of Morgan county, and the latter being a proper party to the action, this action against both was rightly brought in that county (section 5028, Eev. St. 1908), and the mode of service is clearly provided for in section 5035, Rev. St. 1908. Jurisdiction of the person of the guardian was obtained by waiver of process and entry of appearance by him. Possibly, as suggested by the ■974 PARTIES. [Ch. 14. supreme court of Massachusetts, Taylor v. Lovering, supra, this may have cured a want of service on the insane defendant himself ; but we need not resort to that extremity in this case. Under the statute summons was properly directed to the sheriff of Athens county, which was personally served on the insane defendaat in that county. The court had jurisdiction of the person as to both the ward and the guardian from that time until the dismissal with- out prejudice as to the guardian, a period of more than two months. The dismissal from the ease of the guardian, if he was a proper party in the first instance, could not affect the jurisdic- tion over the person of the ward already properly acquired. Its only effect would be to dispense with the presence of the guardian as a party uiitil, at some future stage of the action, the court should find it necessarj' to bring him in again. It follows that the judgment of the court of common pleas quashing the service made on Wood Stuard by the sheriff of Athens county and the judgment of that court dismissing the plaintiff's petition for want of jurisdiction over the person of the defendant were erroneous, and the judgment of the circuit court is therefore affirmed. See "Insane Persons," Century Dig. §§ 166, 169; Decennial and Am. Dig. Key No. Series § 95. WILLIAMS V. BANKHBAD, 19 Wallace. 563, 570. 1873. Parties in Equity. [Bill in equity in the circuit court of tlie United States for the eastern district of Arkansas, to subject a fund to the satisfaction of a mortgage on real estate situate in Arkansas. Bankhead filed the hill and Wil- liams and others were defendants. For reasons stated below, the de- fendants Insisted that the widow of the mortgagor was a necessary party. The judge ruled otherwise and rendered a decree against defend- ants, Williams and others, and they appealed. Reversed. Some time prior to 1854, James Branch contracted to purchase a tract of land in Arkansas from Isaac Bolton. Branch paid part of the purchase money and took from Bolton a contract to convey when the residue of the price should be paid. In 1854, Branch mortgaged his equitable estate in such land to Bankhead. Bankhead, in a suit in equity, sought a fore- closure of his mortgage. While such proceeding was pending, a state court decreed a rescission of the contract of sale and purchase, made by and between Branch and Bolton, and that the purchase money paid by Branch be refunded to his widow — she claiming the same under a mar- riage settlement. Bankhead then filed this bill, in the circuit court of the United States, seeking to subject the money directed by the state court to be refunded to Branch's widow, to the satisfaction of the mort- gage made to him by Branch. To this bill the defendants were Wil- liams — who was in possession of the land covered by the contract to convey and the mortgage — the administrator of Branch, and the devisee of Bolton; but Branch's widow was not a party. The defendants in- sisted that no decree could be made subjecting the fund to Bankhead's mortgage because the widow was an indispensable party. Bankhead in- sisted that he was excused from making her a party because she did not reside in Arkansas and therefore could not be served with process. PARTIES. 975 After disposing of another point presented by the appeal, the opinion proceeds : ] Bradley, J. . . The other ground of appeal, namely, that the widow wis an indispensable party, presents a more serious question. On the one hand it is said that, not being a party, her rights were not concluded ; and that the only inconvenience arising from proceeding with the ease without her was the double liability to which Bolton and the administrator of Branch became exposed by having to pay her and Bankhead both, under contrary decrees ■of different courts. The general rule as to parties in chancery is, that all ought to be made parties who are interested in the con- troversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction ap- pears to be as follows : First. Where a person will be directly af- fected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule. Secondly. Where a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should Tdc made a party if possible, and the court will not proceed to a de- cree without him if he can be reached. Thirdly. Where he is not interested in the controversy between the immediate parties litigant, but has an interest in the subject-matter which may be conveniently settled in the suit, and thereby prevent further liti- gation, he may be a party or not, at the option of the complainant. In the present case, if the question were one of mere personal liability on the part of Bolton, McNeill, and Williams, it might have been admissible to proceed without making the widow of Branch a party, inasmuch as she was not a resident of Arkansas, -and could not at the time be made a party in the circuit court without being served with process in the district of Arkansas or voluntarily appearing to the suit. The act to further the admin- istration of justice, by which an order of publication for the ap- pearance of non-resident defendants is provided for, if it would apply to the case, had not been passed. But this is not a case of mere personal liability. It concerns the disposal of a specific fund, in which the widow claims an interest. If the sum of $3,666.66 mentioned in the decree is not paid, the plantation is directed to "be sold in order to raise the amount of Bankhead 's claim. And this plantation is in the possession of the widow by her tenants. She is to receive the rents and profits thereof until her claim is satisfied by the payment of the said sum of $3,666.66 and the in- terest due thereon, awarded her by the Desha county court. Her interests, therefore, are directly affected by the decree. Under these circumstances we think that she was an indispensable party. The decree, therefore, must be reversed, and the cause remanded to be proceeded in according to law. 976 PARTIES. [Ch. 14. See "Equity," Century Dig. |§ 246-253; Decennial and Am. Dig. Key No. Series §§ 89-96. STEVENSON v. AUSTIN, 3 Metcalf (Mass.) 474, 480. 1842. Parties in Equity. Very Numerous Parties. Trustees and Cestuis que Trust as Parties. A Few of a Class Sufflcient, When. [Bill in equity seeking to reach a certain fund in the hands of Austin. James Bruce became insolvent and made a deed of assignment to trus- tees for the benefit of his creditors. Among the assets so assigned was a claim to the fund in question. Austin, Bruce and the trustees were made defendants; but the creditors secured by the deed of assignment were not made defendants. The defendants insisted that such cred- itors were necessary parties. These creditors consisted of nineteen in- dividuals and firms — some of whom were non-residents, one firm being resident in Europe — and seven corporations.] Wilde, J. ... It appears that Bruee, having become in- solvent, has assigned his property and eilfeets, including his equit- able claim to the funds in the hands of Austin, to Stevenson & Curtis, in trust for the use and benefit of his creditors. The as- signees are made parties defendants in this suit ; but it is objected, that the creditors, who have become parties to the assignment, ought also to be made defendants in this suit. The general rule is, that all parties interested in the subject of the suit should be made parties, plaintiffs or defendants, so that the court may settle the rights of all parties interested, and may thereby prevent fu- ture litigation. But there are many exceptions and qualifications to the general rule. When the parties interested are very nu- merous, so that it would be difficult and expensive to bring them all before the court, and all the different interests may be fairly tried, the court will not require a strict adherence to the rule. It is said that the creditors in this case are numerous, some residing out of the commonwealth, and the residence of others being un- known. We think, therefore, that it is sufficient to make the as- signees parties, who alone have a right to claim the property (they having the legal title), and who are empowered, and whose duty it is, to represent the interests of and to act for all the cred- itors interested in the trust. In Adair v. The New River Co., 11 Ves. 445, it is said by Lord Eldon, that it is not necessary to make all the individuals, who are interested, parties: "The court therefore has required so many, that it can be justly said, they will fairly and honestly try the right between themselves, all other persons interested, and the plaintiff." So in Lloyd v. Loaring, 6 Yes. 779, Lord Eldon says, "I have seen strong passages, as falling from Lord Hardwicke, that where a great many individuals are jointly interested, the court will let a few represent the whole." So in Vernon v. Blackerby, 2 Atk. 145, Lord Hardwicke refers with approbation to a case decided in 1720, where several persons were interested, who had given a general power and authority to some few only. PARTIES. 977 and therefore to avoid inconvenience from making numerous par- ties, the court restrained them to those particular persons who were intrusted with the general power. It is laid down in Mit- ford, PI. 3d ed., 142, that "trustees of real estate for the payment of debts or legacies may sustain a suit, either as plaintiffs or de- fendants, without bringing before the court the creditors or lega- tees for whom they are trustees ; and the rights of the creditors or legatees will be bound by the decision of the court against the trus- tees." And this rule seems supported by the current of the au- thorities. In Meux v. Maltby, 2 Swanst. 277, several of these and some other authorities are referred to, and the question as to par- ties in similar eases was very fully considered. In that case, on a bill against the treasurer and directors of a joint stock company, it was held that it was not necessary that the rest of the proprir etors, being very numerous, should be made parties. Sir Thomas Plumer, master of the rolls, after referring to several authorities, says: "Here is a current of authority, adopting, more or less, a general principle of exception, by which the rule, that all persons interested must be parties, yields when justice requires it, in the instance either of plaintiffs or defendants. The rigid enforcement of the rule would lead to perpetual abatements. This, therefore, cannot be regarded as a new point, or as creating a difficulty. It is quite clear that the present suit has sufficient parties, and that the defendants may be considered as representing the company." Nor is there anything inconsistent with this principle of excep- tion in the decision of the case of Newton v. The Earl of Egmont, 4 Simons, 585, and 5 Simons, 130, cited by the defendants' counsel. In that case, the plaintiff claimed priority of his incumbrance to the claims of sundry creditors for whose use and benefit the estates incumbered had been conveyed in trust ; and it was held that all the creditors must be made parties. The Vice Chancellor says, ' ' I accede to the rule laid down in Adair v. The New River Co. That rule, .however, applies only to cases where there is one general right in all the parties ; that is, where the character of all the par- ties, so far as the right is concerned, is homogeneous. In this case, where the question is priority of charge, the very nature of the question makes it necessary that all the creditors should be par- ties. It implies a contest with every other person claiming an interest in the land." 5 Simons, 137. From these authorities it seems very clear that there is no de- fect of parties in the present case, and that it is unnecessary that the creditors of Bruce should be made parties, which must be at- tended with great delay, expense and difficulty, without subserv- ing, in any respect, the administration of justice between the par- ties interested. The interests of these creditors are similar, which the trustees are bound to enforce and defend. . . . See "Equity," Century Dig. § 253; Decennial and Am. Dig. Key No. Series § 96. Remedies — 62. 978 PARTIES. [Ch. 11. CLINE V. GREEN, 1 Blackford, 52. 1820. How Long a Party Is Considered to be in Court. When Notice of a Motion Is Required. [Cline obtained a final judgment against Green; execution issued and Green's property was sold thereunder. Green tlien made a motion in the cause to quash the execution, which motion was granted. Reversed. The cause in which the motion was made had been concluded by the entry of a final judgment. No notice was given to Cline that Green in- tended to make the motion to quash.] HoLMAN, J. The grounds on which this motion was sustained are unimportant, inasmuch as a previous notice of the motion was indispensable. Every individual has an unquestionable right to be heard when his interest is jeopardized by legal proceedings; but unless he has notice of these proceedings, he has no oppor- tunity of being heard. While a suit is depending, the plaintiff is considered in court, and ready to support his right ; but when the judgment is obtain-ed, judicial proceedings are at an end, and the plaintiff is considered in court no longer. Every objection after- wards made to the manner in which the judgment is executed, is, in legal intendment, made without his knowledge, unless he is specially notified thereof. There can, therefore, be no question but that the plaintiff should have had notice of the time when this motion was intended to have been made, that he might have been prepared to have defended himself against its effect. Judgment reversed. A cause is pending for purposes of motions until the judgment is fully performed — satisfied. (But after final judgment the opposite party must be given due notice of an intended motion, as is ruled in the princi- pal case.) Lynn v. Lowe, 88 N. C. at top p. 484, citing many cases; see also Lanier v. Heilig, 149 N. C. 384, 63 S. E. 69. See "Execution," Century Dig. § 475; Decennial and Am. Dig. Key No. Series § 163. PALMER V. CROSBY, 1 Blackford, 140. 1821. Joint Parties. Several Parties. Joint and Several Parties. [Crosby sued Palmer and five others in trespass for assault and bat- tery. Four of the . defendants were served with process but two were not served. There was a verdict and judgment against the four who were served and they carried the case to the supreme court by writ of error. Affirmed. Palmer and the three others who were served Insisted that Crosby should have sued out an alias writ for the two defendants who were not served, before proceeding to judgment against those who were served-! Blackford, J. In support of the first point, the plaintiffs in error have cited 1 Str. 473, 2 Str. 1269, and 1 Wils. 78. These are all actions founded on contract, and if the present were a case of that kind, the objection would be a sound one, and the authori- ties in point : there could have been no proceedings in the cause PARTIES. 979 against the defendants summoned, until the sheriff had returned that the others were not inhabitants of the county, which return is substituted by our statute for the English process of outlawry. Even where a contract is joint and several, though the plaintiff may go against one or all of the contractors, yet he ought not to sue an intermediate number. When he sues more than one, he depends upon the joint contract, and then all the joint contractors living should be parties; if they be not, it is good ground for a plea in abatement. The King v. Young, 2 Anst. 448; 1 Will. Saund. 291, n. 4; Leftwich v. Berkeley, 1 Plen. & Munf. 61. Neither can the plaintiff enter a nolle prosequi as to any of the defendants in an action on contract, except where they sever in pleading, and one pleads something which goes to his personal discharge. Noke v. Ingham, 1 Wils. 89. But the law is very dif- ferent in actions founded on tort. The persons guilty are sep- arately liable to the party injured, and he has a right to sue one or all, or any number of them. 1 Will. Saund. 291, n. 4. If the plaintiff commence suit against several, he may, at any time before judgment, enter a nolle prosequi as to any of them. Even after a joint plea in an action of trespass, and after a verdict that the defendants are jointly guilty, the plaintiff may enter a nolle prose- qui as to some, and take judgment against the others. 1 Will. Saund, 207, n. 2. The case before us is one of assault and battery, in which the writ was served on, and the judgment entered against, four only of the six; persons against whom the plaintiff complained. Why is this wrong? As the action might have been originally instituted against these four, so, at any time before final judgment, the plaintitr might elect to take his damages against them alone, and abandon his action against the others. He might, even after his verdict against the four, have entered a nolle prosequi as to two, and taken judgment only against the rest. It is no objection to the proceedings now under consideration, that there was no entry of a nolle prosequi as to the two upon whom the process was not served : that was unnecessary, because they were no more par- ties to the action than if their names had not been in the writ. Where suit is only against some of the trespassers, it is usual to declare against them simul cum quibusdam ignotis, and it was once thought that if the plaintiff, in such a ease, declared simul cum A and B, the action should abate, because, it was said, as the plain- tiff knew the other trespassers, he ought to have joined them in the suit. Hob. 164, 199. But this objection was cured by a verdict. Henly v. Broad, 1 Leon. 41. In the ease under consideration, the declaration is that six committed the trespass, which is, in sub- stance, the same is if it were that the four simul cum the other two committed it. So that, according to the case of Henly v. Broad, no objection could be made, after verdict, that the other two were not parties to the action. The distinction made in those cases from Hobart & Leonard has been long since done away ; it is now con- sidered immaterial whether the other trespassers were known or 980 PARTIES. [Gh. 14. imlaiown to the plaintiff; and the exception to the declaration here urged for the reversal of the judgment, would not have been good had it been pleaded in abatement. 1 Will. Saund. 291, n. 4; Rose V. Oliver, 2 Johns. 365. . . . Judgment affirmed. See Revisal, sees. 412, 413. For effect of releasing one joint tort feasor, see 19 L. R. A. (N. S.) 618. See "Assault and Battery," Century Dig. § 65; Decennial and Am. Dig. Key No. Series, § 45. See "Parties," 30 Cyc. 1-144; for parties in equity, see 1 Foster's Fed. Prac. §§ 42-62. See 2 L. R. A. (N. S.) 1089, 7 lb. 415, 11 lb. 676, 15 lb. 129, 18 lb. 643, 19 lb. 984, and notes (under what name a party may sue or be sued, idem sonans) ; 5 lb. 611, and note (wife as plaintiff against husband in an action on a contract); 2 lb. 961, and note (action by and on behalf of insane persons) ; 22 lb. 454, and note (only the personal representative can sue for personal assets o£ the estate of a decedent); 4 lb. 657, and note (action by foreign executor — ancillary administrator appointed pendente lite) ; 20 lb. 221, 21 lb. Ift21, and see also 477, 22 lb. 492, and notes; also Sergeant v. Stryker, 16 N. J. L. 464, and note, in- serted at ch. 8, sec. 3, (b), Mcintosh Cont. 408-423, 3 Page Cont. ch. 60, Clark Cont. 351-359, 7 Am. & Eng. Enc. L. 104-110, 30 Cj'c. 59-67, 52 L. R. A. 305, 61 lb. 509, 63 lb. 727, 15 lb. 375, 21 lb. 653, 23 lb. 146, 25 lb. 257, 28 lb. 532, 51 lb. 241, 653, 53 lb. 390, 609, and notes (right of a stranger to sue on a contract inter alios — privity); 15 L. R. A. (N. S.) 399, and note (action by one for whose benefit a clause is inserted in a contract inter alios); 19 lb. 475, 8 lb. 249, and notes, 143 N. C. 386, 394, Mcintosh Cont. 422 (parties to actions against a telegraph company for negligence, etc., in transmission of messages); 19 L. R. A. (N. S.) 984, and note (action against a feme covert in her maiden name); 16 lb. 276, and note (foreign sovereign as a defendant); 12 lb. 941, and note (a defendant fraudulently induced to enter a state that service of process might be had on him). INDEX [the figures refee to the pages.] ABATEMENT, of nuisance, 72. by act of party injured, 72-86. cutting down bridge across navigable stream, 73, 74, 75. cutting projecting limbs of trees, etc., 82. destroying intoxicating liquors, 76, 77. killing sheep-killing dog, 46, 47. killing troublesome dogs, 80, 81. removing building that interferes with light, etc., 81 removing gate across highway, 72, 73. removing obstruction in a stream, 82. when exercised as to a public nuisance, 76. ABATEMENT, plea in, for defect of parties, 948, 979. for variance in declaration and writ, 926. for want of jurisdiction, 875. ABDUCTION, of child, action by parent for abducting, 526-527. measure of damages for abduction, 527. what constitutes abduction and kidnapping, 527. ABUSE OP LEGAL PROCESS, conspiracy to use legal process improperly, 480. distinguished from malicious prosecution, 473, 474, 475. what constitutes, and the remedy for, 470-472, 474, 475-478. ACCESSION, title affected by, 196. ACCORD AND SATISFACTION, definition and essentials, 88-90. ACCOUNT, acceptance of account stated, 657, 658. action brought for separate items, 673, 674, 675, 676. effect of account stated upon right to separate items, 676. ACCOUNT, action of, "account render," 343. jurisdiction of law and equity in matters of account, 342, 343, 344. practice in, at law and in equity, 342, 343, 344. when the action lies, 341, 342, 343. when assumpsit may be brought instead, 342, 343. ACTIONS, against the state, 162. commenced when, 922-923, 924, 925. commenced by summons, except where publication is to be made, 944. considered as pending how long, 978. concerning real estate, 119. distinction in forms abolished under the Code, 362-365. ex contractu and ex delicto distinguished, 320-337. ex contractu or ex delicto for negligence, 395-397. ex contractu and ex delicto under the Code practice, 330, 331. for the death of a person, 366-373. for direct and consequential injuries, 618, 619, 620, 625. 982 INDEX. [the figures befek to the pages.] ACTIONS— continued. for special injury by public nuisance, 406. in tort or contract optional, when, 666-667. in tort or contract for malpractice by physician, 412, 413. in tort for furnishing unwholesome food, 407, 408, 410. local and transitory actions distinguished, 909-910. mixed actions, 125, 201. on the custom and in special case against innkeepers, 620-622. on oiflcial bonds in the name of the state ex rel., 645, 646. possessory actions, 120, 152. real actions, 119, 121, 152. procedure in, in common law courts, 911. procedure at common law compared with the Code, 363, 364, 365. splitting accounts, where one item or several, 673, 674, 675, 676. trespass and case distinguished, 260, 261, 382, 383, 394, 395. waiving the tort and suing in contract 617-618. waiving the tort and suing in assumpsit for goods sold, 658, 659, 660. waiving the tort and suing in assumpsit for money had and re- ceived, 658, 659. for waste, 201, 202, 203. for waste, trespass by tenant and case by remainderman, 258. when debt, covenant, or assumpsit should be brought, 632-634, 643. ACTION TO RECOVER LAND, by equitable owner, 173. equitable defenses, 160, 174. parties in, 158, 159. under the Code practice, 151-155, 156, 157, 158. see Ejectment. ACTIONS EX CONTRACTU, distinguished from actions ex delicto, 321-329. forms of, 338-347. imprisonment for debt in, explained, 320, 321. joined with causes ex delicto, 332, 333. on warranty of soundness, 325. ACTIONS EX DELICTO, distinguished from actions ex contractu, 321-326, 328, 329. forms of, 348-361. imprisonment for debt in, explained, 320, 321. joined with causes ex contractu, 332, 333. ADJOINING LANDOWNERS, right to abate a nuisance, 81, 82. right to control flow of water, 83-87. ADVERSE POSSESSION, entry by rightful owner, 61, 62. entry under claim of right, 57-60, 61. ALIMONY, see Divorce, AMENDMENTS AND JEOFAILS, statutes regulating, 912-915. ANCILLARY REMEDIES, 845. claim and delivery, 605, 607. requisites of aflBdavit in, 845. under the Code practice, 845. ANIMALS, case and trespass for injury done by, 625, 626. case or trespass for injury done to, 618, 625, 626. dogs. Killing as a nuisance, 80, 81. dogs, sheep-killing, killed, 46, 47. dogs, when killed in self-defense, 16, 17. dogs, liability of owner for injury done by, 32, 33, 625, 626. INDEX. 983 [THE FIGURES EEFER TO THE PAGES.] ANIMALS— continued. liability of owner for injury done by dangerous animals, 625, 626. liability of owner for injury done by trespassing animals, 254, 255, 256. running at large, damage by and to, 255, 256. trespassing, damage feasant, 43, 44, 45, 48. trespassing, injury to, 48, 49, 50. trespass by wild animals kept in a park, injunction, 265, 266. APPEALS, certiorari to correct or certify case on appeal, 838-839. certiorari, upon diminution of the record, 838. effect of failure to give bond, 882. effect of appeal upon injunction, 818-821. effect of appeal upon a judgment, 818-821. effect where appellate court has concurrent and derivative jurisdic- tion, 900. from order of judge disbarring an attorney, 836-837. in habeas corpus proceedings, 454, 455, 456. in the case of receivers, 864. in overruling motion to dismiss on special appearance, 935-936. powers of appellate court in arrest and bail, 848. APPEALS OP DEATH, 366-369, 372. APPEARANCE, how entered at common law, 936. general and special distinguished, 933-935. effect of general appearance, 882, 883. effect of, as a waiver of objections to the writ, 915-916. general appearance in person or by attorney, waiver of defective service, 932-935. special appearance, for what purpose made, 933-935. special appearance to move to dismiss, practice in, 935-936. special appearance to move to dismiss, overruling the motion, 935- 936. voluntary general appearance, effect of, 933-935. voluntary appearance, a waiver of process, 924. voluntary appearance, effect of in attachment, 852-854. when a waiver of objection to jurisdiction, 883. ARBITRATION AND AWARD, arbitration bonds, 90, 91. award specifically enforced, 314. distinguished from a reference under the Code, 94. enforcement by rule of court, 90, 91, 94. history and practice, 90, 91. practice in, 93, 94, 95. what may be submitted to, 91, 92. void agreement for, in insurance policy, 92, 93. ARREST, evolution of, as process in civil actions, 920-922. effect of appearance as a waiver of objection, 920-922. what the affidavit should contain, 920-922. ARREST AND BAIL, appellate court does not review the facts, 81^. defendant arrested in an action for seduction, 536. duty of the court to find the facts, 847. in what cases allowed in civil actions, 846. motion to vacate, practice in, 847, 848. ne exeat used in equity, 848. not applied to actions purely ex contractu, 320, 321. 984 INDEX. [the FIGUKES REFER TO THE PAGES.] ARREST AND BAIL— continued. what the affidavit should contain, 846, 847, 848. when execution issued against the person of defendant, 848-850. ARREST OF JUDGMENT, variance between writ and declaration as ground of motion, 911-915. ASSAULT AND BATTERY, assault defined, 30. assault without battery or special injury, 385, 386. elements of damage in assault, 385, 392-393. excessive force, 39, 40, 41, 42. evicting a person from a hotel, 34, 35, 36, 37. evicting a tenant, 62-65. giving croton oil in jest, 407. improper advances to a woman, 385, 386, 392, 393. in ceremonies of secret society, 390. in defense of house, 39, 40, 42. in recaption of property, 50-55. injury from unlawful act, squib case, 382, 383. is forcible vaccination a battery, 392. mutual assaults, fighting by consent as a defense, 389, 390. provocation as a defense, 386-389. to prevent a trespass in the public road, 38. suit by husband and, wife for injury to wife, 496. volenti non fit injuria, as a defense, 389, 390. what constitutes an assault, 383, 384, 385, 386. what constitutes a battery, 391, 392. ASSIGNMENT, assignee of land cannot sue for breach of covenant of seizin, 273. of land does not give right to sue for previous trespass, 267. ASSIGNMENT FOR BENEFIT OF CREDITORS, 767-771. ASSISTANCE, WRIT OF, when issued, 318, 319. ASSIZE, WRIT OF, 120, 152. ASSUMPSIT, common counts in, 670. concurrent with case, when, 353, 354. different counts in action on promissory note, 678, 679. distinguished from debt, 345. form of action on the case, 345. for gratuitous service, 648. for service where no Intention to charge, 649, 650. for services rendered to insane person, 653. for money had and received, in sale of property, 617-618. for money paid, by purchaser of land, when title defective, 313. general counts and special counts required, when, 654-657. judgment by default and Inquiry, 644, 645. on account stated, 657, 658. on account, when it does not lie, 669-671. on express contract and quantum meruit, 654-657. on general count, when special contract exists, 656, 657. on implied promise to pay for goods retained, 652. on implied promise to pay for services rendered, 650, 651. on promissory note at common law and under statute, 3 and 4 Anne, 676, 677. on special contract and for goods sold, etc., when, 672-673. on special or implied promise, when, 671-673. waiving the tort and suing in contract, 326. waiving the tort and suing for goods sold, 658, 659, 660. waiving the tort and suing for money had and received, 658, 659. when a consideration must be alleged and shown, 681, 682. when it lies, and origin of, 344-347. INDEX. 985 [the figures refer to the pages.] ASSUMPSIT— continued. see Goods bargained and sold, and Goods sold and delivered. see Money had and received, see Money paid to another's use. ATTACHMENT, affidavit, requisites of, 845, 858. against a national bank, 859. as an ancillary remedy under the Code, 857. at common law and under the Code, explained, 854-856. effect of voluntary appearance by defendant, 852-854. history and nature of the remedy, 852-854. how far a judgment in, is conclusive, 852-854. issued before summons is issued, when, 856. motion in the cause to obtain or vacate, 857. "original attachment" and ancillary remedy under the Code, 85€, 860. remedy for wrongful use of, 855. the doctrine of Pennoyer v. Neff, 860. what may be taken under, 855. who may become parties to the proceeding, 857. ATTORNEY AND CLIENT, attorney appearing on both sides of suit, 765-767. proceedings in nature of appeal from order disbarring, 836-837. B. BAILMENTS, liability of innkeeper for loss of guest's property, 620-622. remedy for injury to property in the hands of a bailee, 619-620. when case and when trover against a bailee, 612, 625. when case, trover, or trespass by bailor against bailee, 624-625. BANKS, no attachment against a national bank, 859. BASTARDY, a civil action, 96. mother entitled to custody of bastard, 523. BETTERMENTS, doctrine explained, 176-178. made on land under oral contract of purchase, 311, 312. partition, when improvements made by one tenant, 739-741. BILLS AND NOTES, action of debt on promissory note, 678, 679. consideration presumed in, 679, 681. jurisdiction and practice in actions on lost note, 680. produced at trial of action, 679, 680. remedy on at common law and under statute 3 and 4 Anne, 676, 677. BILLS FOR ADVICE, when sustained, and the limits of, 716-720. who may file such bills, 718-720. BILLS OF PEACE, explained, two kinds, 821-824. to prevent multiplicity of suits of the same IsSnd, 824-826. to prevent multiplicity of suits by same plaintiff, Code practice, 826- 827. BONDS, can the recovery exceed the penalty, 631, 637, 638-640. how judgment entered in debt for penalty, 635-636. how jurisdiction determined in actions on penal bonds, 895. BOUNDARIES, judgment locating is binding, 189. old processioning practice, 188. 986 INDEX. [HIE FIGTJKES REFER TO THE PAGES.] BOUNDARIES— continued. remedies for confusion of, 186-189. special proceeding to settle, 188, 189. BREACH OP PROMISE OP MARRIAGE, 714-715. BRIDGES, across navigable streams, 73, 74, 75. C. CAPIAS, see Process. CARRIERS, see Railroads. CASE, ACTION ON THE, broad scope of the action, 350, 351. assumpsit or case for false warranty, 690, 691, 692. concurrent remedy with assumpsit, when, 353, 354. distinguished from trespass, 348, 349, 351-353, ^82, 383, 394, 395, 618, 619, 620, 625. for breach of duty, 353, 354. for conspiracy, 707-710. for disturbing easement, or increasing the servitude, 259, 260. for enticing child or servant, 524-525. for injury to health, 406. for injury to realty, 260, 261. for libel and slander, 413. for slander of chattels, 627. in the nature of waste, 202, 204, 258. form of writ in, 916-917. lies when the injury is not direct but consequential, 352. on the custom and on special case against an innkeeper, 620-622. origin and nature of, 350. remedy of lessor for injury to the land during the term, 252, 253. waiving the trespass and suing in case, 352, 353. when case and when trover lies against a bailee, 612, 625. CAVEAT, see Wills. CAVEAT EMPTOR, as to patent and latent defects, 697-699, 701-702, 703, 704. has no application to partition, 736-738. in contracts for the sale of land, 271, 272. CERTIORARI, as a substitute for an appeal, 832-833, 835, 836, 837. in habeas corpus proceedings, 456. distinguished from mandamus, 836-837. distinguished from recordari, 835. distinguished from writ of error and false judgment, 832, 833-835, 837. issued upon suggestion of diminution of the record, 838. issued only after final judgment, 833-835. nature and uses of at common law, 832, 833-835. to correct or certify case on appeal, 838-839. what application must show, 833. CHANGE OP REMEDY by statute, 115-118. CHATTELS, recaption of, 51-59. right of seizure when sold on installment plan, 39-41. trespass in retaking, 41. CHURCHES, excommunication as a cause of action, 426-428. privileged communications in church trials, 425-428. rights of pew-holder, 71, 72. INDEX. 987 [the figures refer to the pages.] CIVIL AND CRIMINAL ACTIONS, distinguished, 96-111. actions for a penalty, civil, 106, 107. bastardy, a civil action, 96. botti brought for the same offense, 112. contempt proceedings, criminal, 98-102. merger of, reasons for, 113-115. when merger takes effect, 111-115. peace warrant, a criminal action, 97. taxing prosecutor with costs, criminal, 103-106. CITIES AND TOWNS, trespass q. c. f. for injury to street, 247. for invasion of market-house, 248. CLAIM AND DELIVERY, for house removed from plaintiff's land and affixed to another's land, 198, 199. if affidavit and undertaking given, it is replevin, 850. if not given, it is detinue, 850. like detinue, replevin, or trover, 604-607. nature of the remedy, -850, 851. the defendant must be in possession, 606, 607. what judgment is rendered, 850-851. various cases in which detinue, replevin, or claim and delivery will lie, 607. CLOUD UPON TITLE, bills to remove, 821-824. jurisdiction in actions to remove, 182-186. what constitutes, 184-186.. CODE PRACTICE, administration of equity under, 905-907. claim and delivery in, 605-6ft7. distinctions between actions at law and suits in equity abolished, 362, 363. distinction in forms of actions abolished, 362. forms of action under, 627. forms of action ex contractu and ex delicto, 330, 331. how law and equity administered, 363, 364. in actions for deceit and false warranty, 693. in actions for false imprisonment, 458. in actions for real estate, 151. jn attacking a judgment for fraud, 891-894. misjoinder and nonjoinder of parties, how taken advantage of, 950. nature and purpose of the summons, 926-928, 933. procedure compared with that at common law and in equity, 363-365. recovery on express and implied contract, 655. recovery in contract upon an action in tort, 330, 331. tort and contract distinguished, 327, 328, 330. not distinguished by form of action, 362. CONDITIONS, action for breach of dependent and independent conditions, 682-684. concurrent, plaintiff must show readiness to perform, 684, 685. dependent and independent distinguished, 682-684. CONSIDERATION, presumed in negotiable instrument, 679, 681. when must be alleged and shown, 681, 682. CONSIGNOR AND CONSIGNEE, actual and constructive delivery, 5, 6, 7. stoppage in transitu, 4, 5. CONSOLIDATION OF ACTIONS, power of courts to make, 825. 988 INDEX. [the figures refer to the pages.] CONSPIRACY, action for, lies, wlien, 707-710. essentials and practice in actions for, 707-710. remedy by action on the case, 707-710. to interfere with right of employment of labor, enjoined, 588. CONSTITUTIONAL LAW, due process of law under 14th amendment, 877-881. constructive service as, 885-890. effect of statutes making it criminal to violate contract of service, 572-575. full faith and credit clause, in divorce proceedings, 885-890. as to a foreign judgment, 891-894. impairing obligation of contract, 115-118. Imprisonment for debt, 846. CONTEMPT, compelling a person to testify in proceedings for, 100-102. for failure to obey mandatory injunction, 232. power of courts to commit for, 103. proceedings for, criminal action, 98-102. trial by jury in proceedings for, 102. CONTRACTS, arbitration agreements, when valid, 92, 93. concurrent conditions in, 684-685. consideration alleged and shown, when, 681, 682. constructive service on breach of contract, 549-555. enforcement of negative covenants, 712-714. dependent and independent conditions in, 682-684. effect of remitting a part to confer jurisdiction, 895-898. entire and divisible, in accounts for goods sold, 673-676. entire contract for service, remedy by servant violating, 555-557. entire contracts, when assumpsit, express or implied, will lie, 654, 655. exempting master from liability for negligence, 570. if any written agreement, it must be shown, 656, 657. implied, for money had and received, 661-667. implied, in money paid to the use of another, 667-669. implied liability, when, 648-653. injunction for breach of, when, 710-712. liability for causing a third person to violate, 180, 181. liability of third person for interfering with contracts of service, 582, 583, 586, 589. of lunatic before and after inquisition, 750, 756. parties to actions on joint contracts, 978-980. promise of marriage, 714, 715. remedy for breach, for failure to give note in sale, 672, 673. remedy on, in sales for cash or credit, 671-672. remedy of servant, when wages payable in installments, 549-555. remedy on, when inoney payable in installments, 642, 643. remedy on, when one party is bound under seal and the other not, 631. remedy on, for revocation of license, as ticket-holder, etc., 270. right of third person, not a party, to sue on, 329, 666, 980. waiving the contract and suing in tort, 323-329, 333-337, 353, 354. waiving the tort and suing in contract, 666-667. what contracts are and are not in restraint of trade, 710-712. when breach of contract amounts to a tort, 321-329, 333-337, 353, 354. when case and when assumpsit will lie for breach, 353, 354. CONTRACTS FOR THE SALE OP LAND, measure of damages for breach by purchaser, 300-304. measure of damages for breach by vendor, 304-306. proper parties to proceeding to enforce, 318. remedy of purchaser, at law, for breach, 304-306. INDEX. 989 [THE FIGURES BEFEB TO THE PAGES.] CONTRACTS FOR SALE OP LAND— continued. remedy of purchaser in equity, SOB-SOT. remedies of vendor, 315-318. remedy of vendor, at law, for breach, 300-304. remedy of vendor, when payment in installments, 317-318. right to specific performance with compensation for defects, 313. when caveat emptor applies, 271, 272. when oral contract will be enforced, 309-311. when oral contract not enforced, what relief granted, 311, 312. when purchaser may rescind for defects and sue for money paid, 313. CONTRIBUTION, for defects In partition, 736-738. CONVERSION, EQUITABLE, as to partnership real estate, 734-736. CORPORATIONS, MUNICIPAL, mandamus to enforce payment of judgment by, 794-796. quo warranto to dissolve, 803-804. CORPORATIONS, PRIVATE, actions by and against should be in corporate name, 950-951. liability for slander, 420. quo warranto against, how brought, 802-803. quo warranto for usurping office in, 801-802. CORRECTION, absolute deed converted into a mortgage, 297, 298. COSTS, prosecutor taxed with, 103-106. COUNTERCLAIM, for fraud, deceit and false warranty, 605-606, 693. COURTS, conferring jurisdiction by combining several items, 895. conferring jurisdiction by remitting part of claim, 895-897, 898. conferring jurisdiction by consent, 882. distinction between law and equity in federal courts, 907. effect of concurrent and derivative jurisdiction, on appeal, 900. effect of proceeding when court has no jurisdiction, 874, 877, 882. injunction by United States court to stay proceedings in state court, 815-816. jurisdiction, in actions on bonds fixed by penalty, 646. of common law and ecclesiastical courts, 714, 715. of equity courts, 900-905. of federal courts, 876, 877. of the English courts, 875, 876. In local and transitory actions, 909-910. within and without the state, in divorce proceedings, 885-890. of North Carolina, early history, 913-914. power of courts of law and equity to control the custody of children, 520-524, 527. power of state courts to discharge by habeas corpus one held under extradition proceedings, 453. power of state courts to discharge by habeas corpus one held under federal authority, 451-453. power of United States courts to discharge one from custody under authority of state court, 450, 451. power to commit for contempt, 103, practice in law and equity in federal courts, 772. practice when courts have concurrent and exclusive jurisdiction, 883- 884, 890. what constitutes a court of record, 908. COVENANT, ACTION OF, against the grantee in a deed poll, 629-630. concurrent with debt, when, 339, 630, 631, 637. does not lie against an infant, 631. for breach of covenant of warranty, 281, 282. 990 INDEX. [THE FIGUBES REFEB TO THE PAGES.] COVENANT, ACTION OP— continued. form of writ in, 917. judgment by default and inquiry, 644, 645. lies on sealed instrument, 338, 339, 346, 347, 628, 629. when covenant against one and assumpsit against another in con- tract, 631. writ of covenant between landlord and tenant, 125. COVENANTS, against incumbrances, damages for breach, 277. against incumbrances, effect of notice, 275, 276. against incumbrances, what is an incumbrance, 277. assignee's right to sue for breach of covenant of seizin, etc., 273-275. of quiet enjoyment explained, 281. of quiet enjoyment, seizin and warranty, measure of damages for breach, 277-279. of quiet enjoyment and seizin, when broken, 277, 278. of seizin and right to convey do not run with the land, 273. of seizin and right to convey, when broken, 273-275. of warranty and quiet enjoyment, what is an eviction, 280, 281. of warranty and quiet enjoyment, what plaintiff must show as breach, 280, 281. of warranty, form of action on, 281, 282. of warranty runs with the land, 273. of warranty, what will support an action on, 273. remedy in equity on covenants in a deed, 285. who may sue for breach, heir or executor, 282-284. CREDITORS' BILLS, advertising for creditors, 775-777. bill filed by one creditor converted into a general creditors' bill, 772- 775. consolidation of actions, 767, 768, 770. general creditors' bill explained, 769. judgment creditors' bill explained, 769. jurisdiction in superior court, 771. letting in belated creditor, 775-777. necessity for judgment at law, 769-772. practice in equity and under the Code, 767-771. right of one creditor to contest the claim of another, 772-775. statute of limitations as to claims filed, 772-775. when priority gained by creditor, 767-771. who can participate in the funds, 772-777. CROPS, remedy for, when severed by tenant and by adverse holder, 190-192. trespass q. c. f. by purchaser, 246. DAMAGES, actual or compensatory and punitive distinguished, 392, 393. actual and punitive, in action for abduction of child, 527. actual and punitive, in trespass q. c. f., 238, 239. elements of damage in an assault, 385, 392-393. elements of, in malicious prosecution, 462. for breach of covenants of quiet enjoyment, seizin and warranty, 278, 279. for failure to deliver telegraph message, 403-405. for forcible eviction of tenant, 66, 67. for trespass on land, 236-238. general and special distinguished, 403-405. in an action by parent for seduction of daughter, 533. in an action for fraud and deceit, 702, 705. INDEX. 991 [the figures eefer to the pages.] DAMAGES— continued. in an action for mutilating a dead body, 517-520. in actions for nuisance, 233-236. in an attempt to retake property by force, 53. in ejectment, 146-148, 175, 176. measure ot, for breach of contract to buy land by purchaser, 300-304. measure of, for breach of contract to sell land by vendor, 304-306. measure of, in trover, 616-617. mental anguish as element of, for tort, 392-393, 403-405. past, present and prospective for land taken under eminent domain, 266-268. present and prospective in the construction of a railroad, 234-236. provocation in mitigation, in assault and battery, 386-389. provocation in mitigation. In libel, 430-433. proximate and remote, in case of negligence, 401-403. resulting from fright, 386, 392, 393, 401-403. resulting from threats, 381, 382. return of property as affecting damages in trover, 616-617, 623. what recovered in detinue, 602-604. when punitive damages allowed in false imprisonment, 478, 479. DANGEROUS COMMODITIES, liability of wholesaler to consumer for injuries, 409, 410. selling or delivering without giving notice of their nature, 409, 410. DEAD BODIES, right of action for mutilation of, 517-520. elements of damage in such actions, 517-520. DEATH, action for damages under Lord Campbell's Act, 537, 538. in what state action may be brought, 910. no civil action at common law for injury resulting in death, 537, 538. remedies for injuries causing, 366-373. recovery for, under Lord Campbell's Act, 369-373. DEBT, ACTION OF, explained, 632-634. distinguished from assumpsit, 345. does not lie for different installments in a contract, 642, 643. does not lie upon a collateral agreement, 632-634. form of writ, 917. how judgment entered in debt on penal bond, 635-636. judgment by default final, 644, 645. on promissory note, 678. remedy for penalty given by statute, 640-642. remedy on a judgment, 642. what amount can be recovered in, 634-635, 640-642. when concurrent with covenant, 339, 630, 631, 637. when it lies, and essentials of, 339, 340. when preferred to covenant or assumpsit, 644-645. DEED, absolute converted into a mortgage, 297, 289. liability of grantee in deed poll in an action of covenant, 629-630. remedy for defects in quantity, etc., 271, 272. DELIVERY, actual and constructive, 5, 6. DEMURRER, effect in opening the record, 842. effect of, where several counts or causes of action, 643. DETINUE, ACTION OP, an affirmance of continuing title, 600, 601. distinguished from replevin, 361. distinguished from trover, 601. effect of destruction of subject-matter pendente lite, 601-603. form of writ, 917. 992 INDEX. [the figubes refbe to the pages.] DETINUE, ACTION OF— continued. husband and wife join in, for wife's goods bailed before coverture, 359. judgment given in the alternative, 360, 361. judgment in, conclusive as to title, 600-601. judgment rendered and effect of, 604. modern extension of the action, 360. nature of the action, 359. value of the property at the time of the verdict, 602-604. wager of law allowed, 360. what damages recovered In, 602-604. what must be shown in, 599-600. when It corresponds to claim and delivery, 605, 608. DEVISES, see Wills. DISCHARGE OF OBLIGATION, by payment of smaller amount, 90. the rule, eo ligamine, etc., 89. DISTRESS, for rent, how exercised, 87, 88. impounding, 44, 45. resisting attempt to retake, 52, 53. seizing animals damage feasant, 43, 44, 45. unlawful rescue, 44, 45. DIVORCE, action by wife for alimony with and without divorce, 515-517. domicile of husband and wife in, how determined, 885-890. doctrine of Pennoyer v. Neff in, 885-890. effect of judgment upon constructive service, 885-890. extra-territorial effect of judgment in, 885-890. power of the state and state courts to control such proceedings, 885- 890. remedy of wife for cruel treatment by husband, 515. DOGS, see Animals. DUE PROCESS OP LAW, administration upon the estate of a living person, 877-881. constructive service by publication, 885-890. in proceedings in rem and in personam, 939-942. three ways in which due service of process may be had, 860. E. EASEMENT, case and not covenant for disturbing, 259. interference with flow of water, 83-87. owner of, liable in trespass q. c. f. for improper use, 249. remedy for increasing the servitude, 259, 260. remedy for obstructing, 166, 167. trespass q. c. f. does not lie for, 246. EJECTMENT, action commenced, when, 134. common law practice in, 125-127, 156. consent rule, general and special, 138. damages in, 146-148, 175, 176. does not lie for an easement, 166, 167. equitable defenses in, 140, 174. equitable defenses under the Code, 160. fictions in, casual ejector, 134. John Doe and Richard Roe, 132. lease, entry and ouster, 132-133. of possession, 144. for a roadbed and right of way by a railroad, 167-169. INDEX. 993 [the figures refer to the Pages.] EJECTMENT— continued. forms in, declaration, 127. notice to tenant, 127. prosecution bond, 128. consent rule, 128. service of declaration, 129. bond of defendant, 129. plea of not guilty, 129. verdict and judgment for plaintiff, 129. verdict and judgment for defendant, 130. declaration in trespass for mesne profits, 130. pleas in trespass for mesne profits, 130. verdict and judgment in trespass for mesne profits, 131. judgment in, as an estoppel, 149-155. judgment in, for one tenant in common, 166. origin of, to try title, 120, 121, 125, 126, 127, 132, 133, 146, 152, 153. ouster of one tenant in common by another, 164-166. parties in, 132, 133. against an agent of the state, 162. by owner of equitable title, 173. by mortgagee against mortgagor, 172, 173, 289. by one tenant in common against another, 138, 164-166. by one tenant in common against a stranger, 163, 166. by vendor against purchaser, 315-317. coming in to defend, 134-137, 143-145. letting in to defend under the Code, 158, 159. defenses open to one let in to defend, 144, 145. pleading in, by one tenant in common, 164-166. practice in, 134-137, 168. transition to the Code, 156-157. under the Code practice, 148, 151-161. proving "defendant to be in poseesaion, 133-137. rents and profits how recovered by mortgagee, 289. summary proceedings in, 169-172. title involved, legal or equitable, 139-140, 168. title that plaintiff must show, 140-143, 168. trespass for mesne profits a continuation of, 146-148. writ of possession in, 134, 135. ELECTION OP REMEDIES, between covenant and debt, 630-631, 637. between debt or assumpsit on promissory note, 678. between detinue and trover, 601. between trespass or trover and assumpsit, 658-660. between trespass and case, 352, 353, 618-619, 620. between trover and assumpsit, 617-618. by servant wrongfully discharged by master on entire contract, 551. debt preferred to covenant or assumpsit, when, 644-645. for Injuries resulting from negligence of railroads, 395-397. in actions for tort or contract, 321-333. in cases of fraud and deceit, 704. motion In the cause or recordari, 839-841. tort or contract for false warranty, 691, 692, 694. tort or contract under the Code for malpractice, 413. trespass or case for malpractice, 412, 413. waiving tort and suing in contract, 666-667. waiving contract and suing in tort, 323-329, 333-337, 353, 354. ELECTIONS, interfering with right to vote, 485-489. officers of, not liable for judicial acts, 488, 489. EMINENT DOMAIN, damages past, present and prospective, 266-268. Remedies — 63 994 INDEX. [the figures eeeieb to the pages.] EMINENT DOMAIN— continued. injunction not issued to restrain enterprises under eminent domain, 269. practice in condemnation proceedings, 269. remedy for one whose land is talien, 266-268. right acquired by railroad in right of way and roadbed, 167-169. use of property taken under, as a nuisance, 234, 235. ENTICING AND HARBORING, action by husband for enticing and harboring wife, 501. action by wife for enticing her husband, 507-509. action by parent for enticing child, 524-525. action by master for enticing his servant, 582-585, 589. harboring a wife who is forced to leave her husband, 503. liability of parents for enticing wife to leave her husband, 503, 504. liability of strangers and relatives for enticing and harboring wife, 504-507. remedy by action on the case for enticing child or servant, 524-525. remedy of master for enticing servant, 582-586, 589. what constitutes enticing in the case of child or servant, 524-525. ENTRY, by landlord upon tenant at sufferance, 62-65, 66, 67, 68, 69. effect of entry, 60, 61, 62. gaining possession by force, 60. right of, by the owner of land, 61, 119. right of entry tolled, 119. summary eviction of servant and other occupants, 70, 71. upon another's land to abate a nuisance, 81, 82. upon another's land to retake chattels, 56-59. upon land under claim of right, 236, 237. what constitutes entry, 59, 60. writ of entry, explained, 119, 120, 152. EQUITY JURISDICTION, general principles of, 901, 902-905. limitations of, 901-905. origin of, 900-901. in matters of account, 342-344. in boundary cases, 186, 187. in construction of wills and to advise fiduciary, 716-720, 733. in creditors' bills, 767-771. in foreclosure of mortgages, 285-287. in cases of nuisance, 216-219, 228, 229. in partition, 727, 730-734, 736, 740, 743-744. in bills for redemption of mortgages, 296, 297. in cases of waste, 202, 207. over the estates of infants, 744-746. over lunatics, 751, 752. over person and property, 862, 865, 866. over realty in another state, 910. to issue injunction, 376-380, 804-808. to prevent multiplicity of suits, 824-826. to remove cloud and quiet title, 182-186. to require specific delivery of chattels, 608, 609. to restrain continued trespass, 265, 266. to stay proceedings ,at law, 816, 817. various instances of equity jurisdiction, 901-905. parties in equity, necessary and proper parties, 974-976. result of defect of parties, 949. where parties are numerous, 976-977. practice under the Code, 363, 364, 905-907. practice in the federal courts, 772, 907. INDEX. 995 [THE FIGURES REFER TO THE PAGES.] EQUITY JURISDICTION— continued, subpoena as process, 918-920, 927. see Injunction, Receivers, Specific Performance. EQUITY OF REDEMPTION, see Mortgages. ESTOPPEL, by judgment in an action to recover land, 151-155, 157, 158. by judgment in ejectment, 149-155. by judgment in trespass q. c. f., 256, 257. of tenant to deny landlord's title, 161. applies to licensee of tenant, 161. ESTREPBMENT, writ of, 202. EXECUTION, liability of one causing improper levy, 619-620. oflScer levying under, may maintain trespass, 622-623. officer selling under, may bring separate action for price, 690. when equity will enjoin a sale under, 777-779, 901-905. when issued against the person, it arrest and bail has not been used, 848-850. EXECUTORS AND ADMINISTRATORS, action by administrator for wrongful killing of Intestate, 373, 537, 538. action by, to set aside fraudulent conveyance of intestate, 780-782. administration upon the estate of a living person, 877-881. collector appointed, when, 725, 726. effect upon executor, by filing caveat to the will, 725, 726. power of clerk to revoke letters, 725, 726. proper party to sue for assets of the estate, 980. right of retainer, 2, 3. when they may file a bill for advice, 716-720. when made parties to foreclosure proceedings, 285-288, 292. when they may sue for breach of covenants in a deed, 282-284. when proper parties to action for specific performance, 318. sale of real estate for assets by, what the petition must show, 757-758. who are proper parties, 761-763. how infants made parties, 765-767. reference to ascertain necessity for sale, 759. defenses open to heir or devisee, 759. when homestead claimed, 759-760. power of the court to fix the terms of sale, etc., 76o-761i report and confirmation of sale, 762. opening biddings and resale, 761-764. practice in attacking such sales, 767. attorney for plaintiff advising defendant, 765-767. references as to history and practice in such proceedings, 767. EXTRADITION, power of state court to discharge by habeas corpus one held under, 453. F. FALSE IMPRISONMENT, . distinguished from malicious prosecution, 457-460, 465, 483. effect of void and erroneous process, 457-461. elements of damage in, 460, 461. liability of master for false imprisonment by servant, 461. malice and probable cause not essential, 460. remedy under the Code practice, 458. what constitutes the offense, 456, 457. when punitive damages allowed, 478, 479. when trespass and when case the proper remedy, 457-460, 465: 996 INDEX. [the figubes kefeb to the pages.] FALSE WARRANTY, see Fraud and Deceit. FELLOW-SERVANT ACT, 564-567. FELLOW-SERVANT DOCTRINE, 557-564. FIXTURES, removal of trade fixtures, 8, 9. removing house from land, 195-199. when does a chattel become a fixture, 199. FOOD, one furnishing unwholesome food liable, 407, 408, 410. FORECLOSURE, see Mortgages. FORCIBLE ENTRY AND DETAINER, by landlord, in case of tenant at sufferance, 62-69. distinguished from forcible detainer, 211, 212. forcible detainer by tenant, 212, 213. unlawful detainer, remedy for, 210. what constitutes, 210, 213. FORCIBLE TRESPASS, what constitutes, 68. FRAUD AND DECEIT, elements of, 701, 703, 704. action ex delicto and ex contractu, when, 32.4, 325. action in tort for deceit and false warranty, 690, 691, 693. distinguished ffom warranty, 693-695. election of remedies in, 704, 706. in sale of land when no covenants taken, 271, 272. fraud as a defense to a foreign judgment, 891-895. in the case of latent and patent defects, 697-699, 701-702. knowledge of maker that statement is false, 695-697, 701-705. matters of opinion, puffing one's wares, 703-705. measure of damages, 702, 705. must result in injury, 700, 702. practiced by vendee on vendor, 705, 706. suppressio veri or suggestio falsi, 697-699, 701-704. when mere silence amounts to, 697-699, 701-702. when scienter shown, 690-697. when rescission allowed, 704, 705. FRAUDULENT CONVEYANCES, action by administrator to set aside conveyance by intestate, 780- 782. creditor's remedy at law and in equity, 777-779. effect of filing creditors' bill, 767-771. remedy of creditor when fraudulent grantor is dead, 780-782. what deeds are void under 13th Elizabeth, 778. what property may be reached under 13th Elizabeth, 779. when creditor must go into equity, 779, 780. FREEDOM OF THE PRESS, explained in libel, 428-430. FRIGHT, damage resulting from, 386, 392-393, 401-403. injury from, caused by negligence, 401-403. PRUCTUS INDUSTRIALES, see Crops. GOODS BARGAINED AND SOLD, distinguished from goods sold and delivered, 669-671. when the action lies, 669-671. GOODS SOLD AND DELIVERED, action lies when, 669-671. distinguished from goods bargained and sold, 669-671. judgment by default final or by default and Inquiry, when, 673. splitting account, when one item or several, 673-676. when note given for the price, 671-672. when purchaser fails to comply with terms, 671-673. INDEX. 997 [the figures BEFEB to the PA.GES.] GUARDIAN AND WARD, effect of appointment by deed or will, 523, 524. sale of ward's land for Investment, 747-749. sale^of ward's land for payment of debts, 746. reference to ascertain if sale is necessary, 747-749. sale should be confirmed, 747-749. H. HABEAS CORPUS, appeal in such proceedings, 454-456, 524. by wife to be released from restraint by husband, 490, 491. by prisoner after indictment found, 454, 455. by one in custody under judgment of a court of competent jurisdic- tion, 444-446. duty of judge in, 453-456. for one restrained under contract to serve, 575-577. for what restraint the writ issues, 446-450. history and nature of, 439-441, 444, 445. not substitute for writ of error or appeal, 445-447. power of state court to discharge one held under federal authority, 451-453. power of state court to discharge one held in extradition, 453. practice in, 441-444. right of wife to have husband released, 495. use of the writ to control custody of children, 520-524, 527. when issued by United States court to discharge one held under state authority, 450-451. HEALTH, action on the case for injury to, 406. action on the case for sickness caused by public nuisance, 406. compulsory vaccination, 392. injury resulting from malpractice of physician, 412, 413. liability for injury to, by Christian Scientists, etc., 413. liability for giving croton oil in jest, 407. liability for injury from selling unwholesome food, 407. 408, 410. liability for letting house infected with smallpox, 411, 412. liability for selling dangerous commodities without notice, 409, 410. HIGHWAYS, gate across, removed as a nuisance, 72-73. landowner preventing trespass in, 38. turning out of, when impassable, 77-80. service of notice in proceeding to establish, 930-931. HOMESTEAD, claimed in sale of land for assets, 759-760. HOUSES, a man's house is his castle, 39, 40. breaking open when, 40. remedy for removing from land, 195-201. remedy when removed from mortgaged premises, 200, 201. HUSBAND AND WIFE, action by husband for alienation of wife's affection, 502. injunction to prevent alienation, 376-380. action by husband for crim. con., 497, 498. action by husband for enticing and harboring wife, 501. against parents of wife, 503, 504. against strangers and relatives, 504-507. for harboring when wife forced to leave, 503. action by husband for injury to wife, 239, 240. by selling deleterious drugs to, 509-511. for injury causing death of wife, 369-373. 998 INDEX. [the figures befeb to the pages.] HUSBAND AND WIFE— continued. action by husband of seduction of wife, 495-497. basis of action, consortium, 495. consent of wife, 496, 497, 499, 500. form of action, 495. for trespass and seduction, 238. action by wife, for crim. con., 498-500. for enticing husband, 507-509. for mutilation of husband's dead body, 517-520. habeas corpus for restraint by husband, 490-495. habeas corpus for release of husband, 495. living separate from husband, 962-965. effect of marriage pendente lite, 965. effect of married women statutes upon wife's right of action, 513-515. suing alone under Code practice, 966-967. action by wife against husband, in contract, 980. in equity, 966. for injuries to her person, 513-515. action by both husband and wife, in detinue for wife's goods bailed before coverture, 359. jointly, for injury to wife, 496. jointly and separately, for injury to wife, 511-513. action against wife, appearance by attorney, 968. duty of husband to defend, 968. in her maiden name, 980. joinder of husband, 967-969. judgment binding, when, 968. custody of children, who entitled to, 520-524, 527. divorce proceedings by wife for cruel treatment, 515. domicile of, in divorce proceedings, 885-890. liability of wife for tort growing out of contract, 336, 337. marriage of infant daughter, as emancipation, 507. parties in equity suit, 918-919, 965-966. right of husband to protect wife, 17-20, 240. right of husband to preserve his honor, 17-20, 47. right of husband to restrain wife, 490, 491. right of wife whose land is mortgaged for husband's debt, 291-293. right to sue each other at common law and under statutes, 515. specific performance against husband when wife refuses to join, 308, 309. support 'Of wife, liability of husband for, 516. support, remedy of wife for, 515-517. I. IMPRISONMENT FOR DEBT, at common law and under statutes, 920-922. constitutional provision not applied to torts, 320, 321, 846. effect of statute making it a crime for servant to violate contract, 572-575. no exemption from, for fine and costs in criminal actions, 104-106. INFANTS, as parties, appear by guardian or prochein amy, 951-952. appearing by attorney, effect of, 957-959. failure to appear by guardian or prochein amy, how taken ad- vantage of, 951. how to appoint guardian ad litem and prochein amy, 953-957. INDEX. 999 [the figures befeb to the pages.]' INFANTS— continued. guardian ad litem to file answer, 957-959. how made defendants, 957-959. how service of summons made upon, 959. infants in ventre sa mere as parties, 960-962. practice in making infants parties in law and equity, 766, 952- 953. emancipation of, by arriving at full age, 544, 545. by marriage, 524, 547-549. effect of, upon right to earnings, 546-549. estates of, sold when, 744-746, 747-749. practice in such proceedings, 747-749. how far bound by fraudulent or irregular proceedings, 953-957. liability in covenant, 631. liability for tort growing out of contract, 335-337. INFORMER, action by for penalty, 108-110. INJUNCTION, as an ancillary remedy, when granted, 851. what the affidavit should contain, 851. common and special distinguished, 811-812, 814-815. definition and nature of, 805, 806. effect of appeal from order, 818-821. enforced by contempt proceeding, 821. general rules governing the issue of, 809-811. in what cases relief by, may be granted, 376-378. nine cases in which it is used to protect legal rights, 809-811. interlocutory and final, 812. inlerlocutory or preliminary, when issued, 813-815. judicial and remedial, 806. mandatory, as preliminary and final, 230-232, 804-808. how enforced, 232. to enforce negative covenants, 712-714. to prevent alienation of wife's affections, 376-380. to prevent breach of contract, 710-712. to prevent commission of a crime, 817-818. to prevent injury by criminal act, 588. to prevent enticing and intimidating servants, 586-589. to prevent irreparable injury to realty, 261-265. continuous or repeated trespass, 265, 266. what application must show, 265. preliminary, when issued for, 262, 263. right at law first established, when, 261-263. to prevent multiplicity of suits, 821-827. to prevent a private nuisance, 216, 217. to prevent a public nuisance, 218, 219. to prevent publication of a libel, 438, 439. to prevent publication of pictures, boycott lists, etc., 439. to prevent the sale of liquor, 817-818. to prevent waste, 202, 205, 208, 209. to restrain enterprises for the public good, 269. to stay proceedings at law, 816-817. when courts have concurrent jurisdiction, 883-884. in state court, by injunction from United States court, 815-816. to stay execution, 811-812. to test the validity of a town ordinance, 817-818. INNKEEPERS, guest and boarder distinguished, 620-622. liability for loss of guest's property, 620-622. right to discriminate as to persons dealing with guests, 35-37. right to engage in business connected with inn, 35-37. 1000 INDEX. [the figures EEFEJt TO THE PAGES.] INNKEEPERS— continued. right to evict persons by force, 34-37. right to refuse accommodation, 270, 271. INQUISITION OF LUNACY, 749-756. INSANE PERSONS, effect of inquisition, 749-753. contracts by, before and after inquisition, 750, 756. history, nature and object of inquisition, 749-753. notice to lunatic in inquisition, 754-756. practice in inquisition under modern statutes, 754-756. liability of, for services rendered, 653. parties to actions at law and in equity, 969-974. guardian or committee as a party, 971-974. sale of estates of, how made, 746. service of summons on, 971-974. where action brought when insane person taken out of county of domicile, 971-974. INSURANCE, arbitration agreements In policy, 91-93. INTERPLEADER, bill for advice is in nature of, 716-718. definition and essentials, 828-831. Code practice in, 828-831. privity between claimants, 830-831. what bill should show, 828-829. INTOXICATING LIQUORS, declared a nuisance, not destroyed by individual, 76, 77. injunction to prevent sale, 817-818. JOINDER OP ACTIONS, debt and assumpsit joined, 642-643. legal and equitable causes under the Code, 905-907. tort and contract for deceit and false warranty, 690-694. tort and contract, when joined, 332, 333. JOINT OBLIGATIONS, parties to actions on, 978-980. JUDGMENT, against married women, how taken and when valid, 967-969. attacking a judgment for fraud, 883-884. under the Code practice, 891-894. domestic or foreign judgment, 891-894. by default, in debt, final; in assumpsit and covenant, with inquiry, 644, 645. and inquiry against purchaser in contract for land, 301. final or with inquiry in action tor goods, sold, etc., 673. debt, proper action on, 642. docketed, when not a lien on land, 780. dbctrine of Pennoyer v. Neff, 885-890, 940. effect of appeal, as vacating, 818-821. effect of appeal from justice of the peace, 110. effect of, where no service of process and no appearance, 882, 936. when service- by publication, 885-890, 936-942. without service of process, 839. effect of, in trover as vesting title in defendant, 614-616. effect of, when the court has no jurisdiction of subject-matter, 874. effect of, as against an infant in ventre sa mere, 960-962. effect of nonsuit in replevin, 356. enforcement prevented by injunction, when, 816-817. INDEX. 1001 [the figukes befeb to the pages.] .TUDGMENT— continued. estoppel by, generally, 151. in ejectment, 149-155. in action to recover land, 151-155, 157, 158. in trespass q. c. f., 256, 257. in attachment proceeding, 852-854. evidence of probable cause in malicious prosecution, 466-470, 472, 473. extra-territorial effect of, 885-890. in attachment, 860. form of, in caveat proceedings, 723, 724. in ejectment by one tenant in common, 163, 166. in foreclosure proceedings, 291-293. in aetinue, 360, 361. in debt on penal bond, 635-636. full faith and credit clause as to a foreign judgment, 885, 891. former judgmen as a bar, in cases of permanent Injury to land, 235, 236. in divorce, as affected by domicile, 885-890. of courts not of record, hovjf shown in evidence, 908-909. on one installment, when a bar as to the others, 550, 554. when notice required of motion affecting a judgment, 978. JUDGES, liability of, for their acts, 480-483. JUDICIAL SALES, date at which the purchaser's title is fixed, 294, 295, 765. how conducted in foreclosure proceedings, 291-293. how far purchaser protected in case of fraud or irregularity, 953- 957. mortgagee or trustee buying at his own sale, 295, 296. of infant's land by guardian, practice in, 746-749. opening the biddings and resale, 294, 295, 761-764. remedies to enforce payment of purchase money, 685-690. when writ of assistance will issue, 318, 319. JURISDICTION, defined, 875. general and special, of the English courts, 875. of the English and federal courts compared, 875-877. of courts of equity, 901-905. in removing cloud and quieting title, 182-186. to prevent multiplicity of suits, 265, 266. concurrent and exclusive, 883-884, 890. concurrent and derivative, in appellate court, 900. conferring, by consent, 882. by remitting excess of claim, 895-898. by splitting accounts, 673-6'76. by combining several items, 895. determined by amount demanded In good faith, 327, 895, 898-899. determined how, in actions on penal bonds, 895. failure to give bond as affecting, 882. fictions to confer jurisdiction in the English courts, 899. fraud upon, by making claim too large, 898-899. by remitting part of claim, 898. in divorce, as affected by domicile, 885-890. in local and transitory actions, 909-910. in trover, 617-618. of justices of the peace in tort and contract, 324-327. in criminal proceedings, 97. in summary proceedings in ejectment, 171. over acts committed on boundary rivers, 890. over the person, by service of process, personal or constructive, 885- 890, 936-942. 1002 INDEX. [the riGUKES EEFBE TO THE PAGES.] JURISDICTION— continued. effect of the want of, 877-883. over the subject-matter, by constructive service, 885-890. want of such jurisdiction, how taken advantage of, 874-883. presumed, when action may be either tort or contract, 325-328. to grant administration on estate of living person, 877-881. venue, as affecting, 883. waiver of, by general appearance, 882, 883. as to what defects it operates, 875-877, 882, 883. want of, as a defense to a foreign judgment, 891-892. how objection taken, 875-877. when court may dismiss ex mero motu, 883. see Courts. JURY TRIAL, in equitable actions under the Code, 905-907. in contempt proceedings, 102. JUSTICES OF THE PEACE, appoint guardian ad litem for minor defendant, 957. conferring jurisdiction on, by remission of part of claim, 895-898. by splitting account, 673-676. effect of appeal from judgment of, 110. equitable defenses set up, 893, 894. judgments of, how shown in evidence, 908-909. jurisdiction of, in criminal actions, 97. jurisdiction of, in actions on penal bonds, 895. in actions ex contractu and ex delicto, 324-327. in summary proceedings, in ejectment, 171. liability of, for judicial acts, 483. recordari to remove case to superior court, 839-841. whether they are courts of record, 908-909. K. KIDNAPPING, what constitutes, 527. LANDLORD AND TENANT, cropper distinguished from tenant, 585. distress for rent, 87, 88. equitable defense of tenant, 160. forcible detainer by tenant, 212, 213. landlord defending in ejectment, 143-145. liability of landlord for letting house infected with smallpox, 411, 412. for nuisance maintained by tenant, 223-227. remedy of landlord when tenant abandons, 170. when tenant holds over, 170. right to evict tenant at sufferance, 62-69. force that may be used, 62-68. right to remove trade fixtures, 8, 9. summary proceedings in ejectment, 169-172. who is tenant for such proceedings, 170-172. tenant distinguished from servant, 70, 71. tenant estopped to deny landlord's title, 161. trespass q. c. f. by landlord and case by tenant, when, 252, 253. trespass q. c. f. by tenant against landlord, 250. when tenant cannot plead breach of condition by landlord, 682-684. LIBEL AND SLANDER, distinguished, 416, 421. criminal libel defined, 413. INDEX. 1003 [the FICiUKES BEFEU TO THE I'ACIES.] LIBEL AND SLANDER— continued. criminal and civil proceedings for libel distinguislied, 434, 435. case the proper remedy for, 413. excommunication as a cause of action lor, 426-428. Pox's libel act, history of, 434-437. injunction against a libel, 438, 439. justification as a defense, 414, 415. justifiable purpose shown, 414. malice, when presumed and when shown, 422-425. mutual libels, retaliation as a defense, 430-433. liability of editor for libel published without his knowledge, 420. liability of telegraph company for sending libellous message, 420. privilege, absolute and qualified explained, 422-425. communications in church trials, 426-428. criticism of officers, candidates, etc., 414, 422-425, 428-430. no special privilege to newspapers, 428-430. province of judge and jury in trial for, 434-437. slander of chattels, 626, 627. slander of wife, action by husband or wife, 513. slander of women by imputation of unchastity, 416-418. when special damage must be shown, 417, 418. special damage shown in actions for slander, 416-418, 421. what is such a libel as will sustain a civil action, 415, 416, 421. words actionable per se, 416-420. LIBERTY, effect of statute malting it a crime for servant to violate contract, 572-575. what is unlawful restraint, 22. LICENSE, as a defense in trespass q. c. f., 237. licensee estopped to deny title, 161. remedy of licensee when license revoked, 270. to enter, obtained fraudulently, 241. to enter upon another's premises to take property, 56-59. LIENS, common-law liens, 7, 8. stoppage in transitu, 3-7. LIS PENDENS, effect of in attachment, 858. effect of in detinue, upon purchaser of the property, 600. LORD CAMPBELL'S ACT, 369-373. LOST INSTRUMENTS, jurisdiction at law and in equity, 680. M. MALICE, what constitutes in enticing servants, 583, 591. MALICIOUS PROSECUTION, action on the case for, 457-459, 462, 465. what constitutes the offense, 459-462, 467. complaint should contain what, 466. distinguished from abuse of process, 473-475. distinguished from false imprisonment, 457-460, 465, 483. elements of damage in, 462. for public wrongs and for private injury, 473. malice and want of probable cause necessary, 463, 464, 470, 472. probable cause, advice of counsel, 470, 474. judgment as evidence of, 466-470, 472, 473. mixed question of law and fact, 463, 464. stirring up vexatious litigation, 462, 463. 1004 INDEX. [the figubes refer to the pages.] MANDAMUS, alternative and peremptory, 794-796. as mesne process, 920. distinguished from quo warranto, 792, 801. form of rule to show cause, 788. nature of the writ and when it issues, 787-794. in Code practice, 794. not a substitute for writ of error or certiorari, 793, 837. to enforce payment of debt by county, 794-796. when it issues to inferior courts, executive officers, etc., 792-793. MARKET-STALL, occupant only licensee, 270. MARRIAGE, action for breach of promise, 714-715. jurisdiction of common law and ecclesiastical courts, 714-715. MARRIED WOMEN, see Husband and "Wife. MASTER AND SERVANT, master's liability to servant on contract, action by servant for wages payable In Installments, 549-555. doctrine of constructive service, 549. duty of servant to seek other employment, 549. burden of proof as to this, 549. election of remedies by servant wrongfully discharged, 551. remedy of servant for breach of contract of hiring, 549. remedy on entire contract by servant wilfully abandoning, 555- 557. master's liability to servant In tort, contract exempting from liability for negligence, 570. duty of master to provide safe place and niiachlnery, 567-570. duty of servant in the use of machinery, 567-570. test as to safe appliances, 570. fellow-servant doctrine, history and limitations, 557-560. criticised, 560-564. fellow-servant act and Its application, 564-567. right of master against servant, for breach of contract, 570-575. specific performance of contract of service, 575-577. violation of contract a crime, 572-575. exoneration of master by servant, 578-580. liability of master for act of servant, 23, 24, 25. causing injury to third person, 592-594. for false imprisonment by servant, 461. for negligence or unsklllfulness of servant, 592-594, 597. for wilful acts of servant, 592-597. for wilful and malicious conduct of servant, 595-597. when trespass and when case the remedy, 592-594. peonage, 574, 575. summary eviction of servant and other occupants, 70, 71. right of master to recover for enticing servant, 524-525, 582-586, 589. who Included under the term "servants," 580-582, 584, 585. essentials of the action, 582-585, 589. form of action and pleading, 582-586. injunction to prevent enticing and intimidating, 586-589. what constitutes malice in interfering, 583, 591. right of master to recover for Injury to servant, 580-582. for seduction of female servant, 591-592. right of action by servant against third person tor causing his dis- charge, 589-591. MENTAL ANGUISH, element of damage for an assault, 392-393. In negligence cases, 403-405. in action for interfering with dead body, 517-520. INDEX. 1005 [the figures refer to the pages.] MENTAL ANGUISH— continued. In action by parent for seduction of child, 533. not applied in wrongful taking or detention of pigs, etc., 604. various cases in which the doctrine has been applied, 405. MERGER, of civil injury in the criminal offense, 111-115, 366-373. MESNE PROCESS, defined, 920. MESNE PROFITS, trespass for, 146-148, 190-192. how far recovered, 175, 176, 191, 192. in ejectment by mortgagee, 289. MISTAKE, relief in equity for mutual mistake, 736-738. MONEY HAD AND RECEIVED, gist of the action, 661. nature of the action and when it will lie, 662-665. privity express or implied, 662-666. total failure of consideration, 666-667. waiving the tort and suing in contract, 666-667. MONEY PAID TO ANOTHER'S USE, distinguished from money had and received, 667-668. gist of the action, 667-668. not for officious payment, 668. request express or implied, 667-669. MORTGAGES, mortgagor's remedies, 296. bill to redeem should offer payment, 296, 297. doctrine of betterments, 176-178. may redeem when mortgagee purchases unless he has acqui- esced, 295, 296, 298-300. when mortgagee purchases under power in the mortgage, 298- 300. right of wife whose land is mortgaged for husband's debt, 291- 293. mortgagee's remedies at law and in equity, 285, 289. nature of mortgagee's title, 172, 173. right to possession, 172, 173. right to enter and take property, 55-59. ejectment against mortgagor, 172, 173. practice in foreclosure proceedings, 291-293. strict foreclosure and foreclosure by sale, 285-287. proper parties to foreclosure proceedings, 285-288, 292. foreclosure when purchase money paid in installments, 290, 317, 318. form of decree in foreclosure, 291-293. when receiver appointed, 868-870. practice in foreclosure, opening biddings, resale, etc., 294, 295. disposition of surplus, 287, 288. writ of assistance when issued, 318, 319. house removed from mortgaged premises, 200-201. summary proceedings in ejectment not applied, 172. absolute deed converted into a mortgage, 297, 298. change of remedy by statute, 115-118. MOTION IN THE CAUSE, for injunction to prevent multiplicity of suits, 826-827. to obtain or vacate an attachment, 857. to enforce owelty of partition, 742, 743. when used instead of new action, 840, 883-884. when proper remedy in judicial sales, 690. N. NAVIGABLE WATERS, control over by state and by congress, 74, 75. 1006 INDEX. [the FIGUHES REFER TO THE PAGES. J NAVIGABLE WATERS— continued. obstructing by bridges, 73, 74. obstructing, a nuisance, 221, 222. NE EXEAT, history, uses and practice in issuing, 870-873. in equity instead of arrest and bail, 848. how supplied under the Code, 870-873. NEGLIGENCE, what is actionable, 411. action for death caused by, 537, 538. action in tort for, in breach of contract, 329, 331, 353-354. effect of contract exempting from liability, 570. fellow-servant doctrine, 557, 560, 564. liability of master for negligence of fellow-servant, 557-567. liability for, in sale of dangerous commodities, 409, 410. in construction of ways, as a nuisance, 234. liability for, resulting in fright which causes injury, 401-403. liability of servant for loss from negligence, 578-580. liability for negligent act, squib case, 382, 383, 394, 395. letting a house infected with smallpox, 411, 4I2. liability for, in mutilating a dead body, 515-517. in telegraph cases, mental anguish, 403-405. negligence and contributory negligence defined and explained, 397- 399. "last clear chance" in contributory negligence, 399-401. issues to be submitted in contributory negligence, 401. of master and servant in the use of machinery, 567-570. test as to safe appliances, 570. when innkeeper liable for, in loss of property, 620-622. when trespass and when case will lie, 394, 395. NEGOTIABLE INSTRUMENTS, see Bills and Notes. NEWSPAPERS, no special privilege in libel, 428-430. NONSUIT, effect of in caveat proceedings, 720-721. effect of, in replevin, 356. NOTICE, of motion affecting a judgment or execution, 978. NUISANCE, definition and kinds, 214. what constitutes, 215, 216. in the use of land taken for public use, 234, 235. continuance of, 233-235. mixed nuisances, 223. private nuisances, 233, 234. interfering with light, 81. overflowing land, 233-235. spring guns, 31. abatement of, by party injured, 72-86. entry upon another's land to abate, 81, 82. killing dogs as a nuisance, 46, 47, 80, 81. projecting limbs of trees, 82. abatement of public nuisance, by individual, 76. bridge across navigable stream, 73-75. gate across highway, 72, 73. common-law remedies, 215. repeated actions for, 233-236. measure of damages, 233, 234. action on the case for special damage by public nuisance, 406. nature of special damage, 220-222, 223-227. practice in such actions, 223-227. remedies in equity, 216, 217. bill to prevent a public nuisance, 219. information to prevent public nuisance, 218. jurisdiction and practice in cases of private nuisance, 228, 229. INDEX, 1007 [the figures eefeb to the pages.] NU I SANCE— continued. preliminary mandatory injunction, 230-232. various cases and ttie relief granted, 229. modern remedies, 215. remedies under the Code, 236. indictment and civil action for public nuisance, 112. .' sale of intoxicating liquors as a nuisance, 76, 77. liability of landlord for nuisance maintained by tenant, 223-227. nuisance or no nuisance, how and when determined, 219, 228, 229. O. OFFICERS, criticism of officers and candidates, how far privileged, 416, 422-425, 428-430. liability of judicial and ministerial distinguished, 481-483. not liable for acts done in exercise of judicial authority, 479-483, 488, 489. protected by erroneous but not by void process, 457, 458, 460, 461, 484. OFFICES, quo warranto for usurping, in private corporation. 801-802. quo warranto to try title to public office, 799-801. when mandamus and when quo warranto proper remedy, 792. OFFICIAL BONDS, payable to the state, action on, 645, 646. summary remedy on, 646-648. OUSTER, of one tenant in common by another, 164-166. P. PARENT AND CHILD, action for abduction of child, 526-527. action for enticing child, 524-525. custody of child, who entitled to, 520-524, 527. power of courts to control, 520-524. power of parent to dispose of by deed or will, 521, 523, 524, injuries to child, action by parent, 540. causing death of child, 373, 537-539. expenses incident to negligent killing of child, 538. where child too young to render service, 540. action by both parent and child, 539, 540. no recovery when defendant not in fault, 540, 541. right of father to services of child, 541. services and earnings of adult child, 544-545. to dispose of earnings of child, 549. right of mother to earnings of child, 542-544. emancipation, what amounts to, 548, 549. arriving at full age, 544, 545. effect upon right to earnings, 546-549. effect of marriage, 524, 547-549. marriage of infant daughter, 507. seduction of child, action by fatlier, 527-534. action by both parent and child, 535, 536. action by mother, 536. action by one in loco parentis, 530. effect of consent of child, 535-536. fiction of loss of service, 528, 529, 531-534, 536. PARTIES, 945. in caveat' proceedings, 720-722. corporation as A party, in corporate name, 950-951. 1008 INDEX. [the figures befeb to the pages.] PARTIES— continued. defect of parties at law, 947-950. in equity, 949. demurrer for defect of, 945. in foreclosure proceedings, 285-288, 292. foreign sovereign as a defendant, 980. husband as plaintiff in action for injury to wife, 239, 240, 511-519. husband and wife as parties in equity, 918-919. wife as a party, in equity, 965-966. living separate from husband, 962-965. marriage of feme sole pendente lite, 965. suing alone under Code practice, 966-967. husband joined in action against wife, 967-969. infants as parties, by guardian or next friend, 951-952. next friend not bound by judgment, 535. practice in appointing guardian and next friend, 953-957. how made defendants, 957-959. in equity, 952-953. infants in ventre sa mere as parties, 960-962. lunatics as parties at law and in equity, 969-974. in bills for advice, 718-720. in ejectment, who let in to defend, 158, 159. agent of the state, 162. tenants in common, 163-166. in eminent domain, actions for damages, 267, 268. in specific performance, 318. intervenors in attachment proceedings, 857. in actions on joint obligations, 948, 978-980. joint, several, and joint and several parties, 978-980. joinder of, where two or more liable in tort, 978-980. misjoinder or nonjoinder of, 947-949. under Code practice, 950. naming the parties in the summons and pleading, 927, 928. the plaintiffs, 945. the defendants, 946, 947. in a bill in equity, 918-919, 927, 928. idem sonans, 980. proceeding against unknown parties, 927, 928, 946-947. in partition proceedings, 728. parties considered in court, how long, 978. right of third persons to sue on contracts, 329, 666, 980. to actions on official bonds payable to state, 645, 646. trustee and cestui que trust as parties, 977. where parties are numerous, a few may represent all, 976-977. who may maintain actions for breach of covenants in a deed, 273- 275, 282-284. who should be made parties in equity, 974-976. PARTITION, at common law and in equity, 726-731, 740. advantages of in equity, 740. equity jurisdiction in, 727, 730-734, 743-744. partition of chattels, 736-738, 743-744. matters to be stated in the petition and decree, 726-728. appointment and power of commissioners, 726-728. owelty allowed, 738-739. how enforced, 742, 743. what estates may be divided by partition or sale, 729-730. of partnership lands, when decreed, 734-736. partial partition, actual or by sale, 730, 731. improvements made by one tenant in common, 739-741. in cases of tenants in common with partial division, 732-734. INDEX. 1009 [the figuebs eefer to the pages.] PARTITION— continued. setting apart one share and leaving the others to be held in com- mon, 734-736. sale for, essentials of petition, 731, 732. when ordered, 730-736, 741. implied warranty in, 736-738. when some of the parties are unknown, 728, 927-928. PARTNERSHIP, in actions by, individuals should be named, 945. but not necessary to prove partnarship, 946. partition of lands held by, 734-736. PART PERFORMANCE, specific performance granted, when, 309-311. if requirements not met, what relief granted, 311, 312. PAYMENT, action for money paid to another's use, 667-669. officious payment not recovered, 668. what is and is not oflSclous payment, 668, 669. PEACE WARRANT, a criminal action, 97, 98. appeal or certiorari in, 374-375. nature and purpose of, 374, 375. PENALTIES, action for, civil, 106, 107. action by Informer, when, 107-109. debt proper remedy for, given by statute, 640-642. equity jurisdiction over, 636, 637. more than penalty of bond recovered, 631, 637-640. qui tarn actions, 108-110. repeal of statute for, pendente lite, 109, 110. after judgment, 110, 111. PEONAGE, 574, 575. PERSONAL INJURIES, actio personalis moritur cum persona, 366-373. deprivation of liberty, 439-485. deprivation of privileges, 485-488. injuries to health, 406-413. injuries to reputation, 413-439. preventive remedies by peace warrant and Injunction, 374-380. remedies for, causing death, 366-373. under Lord Campbell's act, 369-373. resulting from assault and battery, 382-394. resulting from negligence, 394-405. resulting from fright, 401-403. resulting from threats, 381, 382. seduction, 391. PERSONAL PROPERTY, change of condition as affecting title, 192-197. remedies for injury to tangible p. p., 598-627. suspended title restored, 2. things severed from the realty, 190-201. PHYSICIANS, liability for malpractice, 412, 413. PLEADING, In abatement of the writ at common law, 926-928. in actions for breach of covenants in a deed, 275, 280, 281. in actions to recover land, complaint, 154, 155. in application for Injunction for trespass, 265. in actions for continuing nuisance in construction of railroad, 236. In bills for redemption by mortgagor, 296, 297. in ejectment by one tenant in common, 164-166. In the old action of waste, 203. Remedies — 64 1010 INDEX. [THE FIOUKKS KEFER TO THE PAGES.] PLEADING— continued. in bill for specific performance, 318. in naming parties, stating facts, etc., in equity, 918-920, 926. in naming parties in the writ and declaration, 945, 946. oyer of and objection to the writ, 926. trespass q. c. f., matter of aggravation, 237. under the Code compared with common law and equity, 363-365. POSSESSION, actual and constructive, in trespass q. c. f., 242-245. adverse, of chattel, 2. constructive, by entry, 61, 62. constructive, where adverse holding, 244, 245. eviction of servant, etc., 70, 71. gained by force, 60. writ of, in ejectment, 134, 135. PRINCIPAL AND AGENT, officious payment by agent, 668. PRIVITY, in action for money had and received, 662-666. in bill for interpleader, 830-831. PROCESS, 911. history and nature of writs, 911-915. at common law, in equity and under the Code explained, 926-928. praecipe, original writ, and capias, 911-912. subpoena in equity, purpose and form, 919-920, 926. arrest to compel appearance, 920-922. forms of original writs, 916-918. issuance of, to commence action, 922-925. in attachment, 856. to another state or jurisdiction, 936-942. by court not having jurisdiction, 882. mesne process defined, 920. oyer of the writ, 926. service of, what meant by, 928-931. by an officer, 920. acceptance of, by married woman, infant, or attorney, 931. what is personal service, 930-931. different methods of making, 860, 939-942. effect of failure of, 882. upon infants, 959. upon lunatics, 931, 971-974. upon a person in jail, 931. obtained by fraud, 931, 980. by publication, how and when made, 932-942. affidavit for, 932, 942-944. requisites for, strictly complied with, 942-944. effect of such service, 885-890. in proceedings in rem and in personam, 186, 936-942. personal service in another state, instead of by publication, 936- 942. return of, how made, 928-930. effect when process not properly served, 928-930. special appearance to move to dismiss for defect of, 935-936. general appearance, a waiver of defect of, 932-935. effect of judgment when there has been no service nor appear- ance, 936. how and when objection made for defect in process, 915-916. appearance as a waiver of such defects, 915-916. voluntary appearance, a waiver of process, 924. void process, how defendant should proceed, 935-936. void and erroneous process in false imprisonment, 457-461, 484. variance between the writ and declaration, 911-915, 926. INDEX. 1011 [THE FIGURES REFER TO THE PAGES.] PROCESSIONING, see Boundaries. PROHIBITION, by what court issued, 783-785, 787. distinguished from mandamus and injunction, 785-787. issued upon notice to show cause, 787. nature and purpose of the writ, 783-787. when the writ will and will not issue, 785-787. PROSECUTOR, taxed with costs, criminal, 103-106. PUBLICATION, see Process. PURCHASER FOR VALUE, in judicial sales, 953. does not apply to legal title, 200. Q. QUIA TIMET, BILLS, explained, 821-824. QUIETING TITLE, jurisdiction and practice in, 182-186. special proceeding to settle boundaries, 189. when bill for, sustained, 821-824. QUI TAM ACTIONS, 108-110. QUO WARRANTO, history, definition, and form, civil or criminal, 796-799. distinguished from mandamus, 792, 801. civil action in the nature of, under the Code practice, 799-801. proceeding by attorney general in the name of state, 800-803. information in the nature of, 797-799, 802-803. burden of proof in, 798-799. remedy to try title to public office, 799-801. how brought against a private corporation, 802-803. for usurping office in private corporation, 801-802. to dissolve a municipal corporation, 803-804. R. RAILROADS, action in tort or contract for breach of duty, 353, 354. for failure to deliver goods, 326, 327. for failure to stop train, 331. claim for freight as affecting stoppage in transitu, 4, 5. ejectment for right of way and roadbed, 167-169. "last clear chance" in negligence, 399-401. liability for injuries caused by defective appliances, 570. liability in tort or contract for injuries resulting from negligence, 395-397. liability for wilful and malicious acts of employee, 595-597. liability for injury to passenger by employee, 386, 388, 392-393. liability under fellow-servant act, 564-567. liability for overflowing lands, 234, 235. damages for permanent injury to land, 234-236. negligence and contributory negligence, effect of, 397-399. remedy against, for land taken under eminent domain, 266-268. right to exclude and separate passengers, 270, 271. REAL ESTATE, remedies concerning, 119. seizin of, actual and constructive, 121-124. right of owner, to things severed from, 190-201. RECAPTION, entering upon another's land to retake property, 50-53, 55-59. excessive force in, 50-55. of chattels from a tort-feasor, 50-52, 54, 55. of property fraudulently taken, 51, 54. 1012 INDEX. [THE FIGUEES REFER TO THE PAGES.] RECAPTION— continued. of property in hands of bailee, 57, 58. of property taken by distress, 44, 45. of property wrongfully taken, 56. RECEIVERS, history and nature of the remedy, 861-863. equity and Code practice in regard to, 863-864. principles governing in the appointment of, 866, 868-870. powers of, and limits of such powers, 861-864. property in the hands of, how far in custodia legis, 867-868. right of, to bring actions, 863, 864. right to sue outside of the jurisdiction, 861-864. uses of the remedy, 861-864. when appointed in foreclosure proceedings, 868-870. practice in appeals in regard to, 864. RECOGNIZANCE, how taken, and effect of as a judgment, 842. proceeding on, by sci. fa., 841-843. defect of parties in sci. fa. proceedings, 948. RECORDARI, as a writ of false judgment and as substitute for appeal, 835, 839-841. distinguished from certiorari, 835. practice in, under the Code, 839-841. uses of, at common law, 839. when supersedeas issues, 841. REMAINDERMEN AND REVERSIONERS, remedy for, in case of waste, 205, 253. right to timber cut by lite-tenant, 192-195. REMEDIES, ancillary, 845. by judicial proceeding, 96. concerning real estate, 119. extraordinary, 783. for injury to rights growing out of contract, 628. for injury to rights growing out of relation, 490. for injury to personal security, liberty and privileges, 366. for injury to tangible personal property, 598. for rights other than for realty, 320. for things severed from the realty, 190-201. in special cases, 716. without judicial proceeding, 1. jurisdiction over, 874. process for, 911. parties to, 945. change of, by statute, 115-118. REMITTER, 1, 2. RENT, distress for, 87. REPLEVIN, action of, essentials of the action, wrongful taking, 357, 358, 361. history and nature of, 355-358. distinguished from detinue, 361. from detinue and trover, 358. does not lie against one not in possession, 599. for a house severed from the land, 599. for house removed from owner's land and affixed to another's land, 197. for trees severed from land, 192-195. form of writ, 917-918. judgment of nonsuit, effect of, 356. INDEX. 1013 [THE I'lGUKES liEFF.R TO THE PAGES.] REPLEVIN— continued. extent of liability on replevin bond, 638-640. two kinds, by writ and by plaint, 357. when it corresponds to claim and delivery, 605, 850. who can maintain the action, 598, 599. RESCISSION, when allowed for fraud, 704, 705. RESCUE, of animals taken by distress, 44, 45. RESTRAINT OF TRADE, remedy for, by injunction, 710-712. what contracts are and are not in, 710-712. RETAINER, by executor or administrator, 2, 3. ROADS, see Highways. SALE OF LAND FOR ASSETS, see Executors and Administrators. SALES, caveat emptor as to defects, 697-699, 701-702, 703, 704. entering upon another's land to take property sold, 57, 58. fraud and deceit practiced in, 690-706. implied warranty in, 737. remedy in oral and written contracts of sale, 671-672. remedy when sale for cash or on credit, 671-673. remedy when purchaser fails to give note, etc., 671-673. stoppage in transitu, 3-7. when action for goods bargained and sold or for goods sold and de- livered, 669-671. when action for money had and received and when trover, 617-618. SCHOOLS, action for wrongful expulsion from, 538, 539. SCIRE FACIAS, explained, and practice in, 841-843. use of at common law and under the Code, 843-844. SEDUCTION, action by husband for seduction of wife, 495-497. trespass or case by, 495-497. action by parent for seduction of child, 528-534, 536. trespass or case for, 527-530, 532. elements of damage in, 530, 533. action by both parent and child for seduction of cliild, 535-536. action by one in loco parentis for seduction, 530. action by master for seduction of servant, 591, 592. action by woman for her own seduction, 391, 535, 536. death of person seduced, as abating the action, 530. SEIZIN, actual or constructive, 121-124. SELF-DEFENSE, defense of person, family, servants and property, 9-50. from assaults with and without felonious intent, 14. reasonable apprehension of injury, 11-15. retreating to the wall, 11, 12, 15. defense of one's liberty, 20-22. resisting an officer, 13. excessive force, 17, 21, 22, 39-43. husband protecting his honor, 17-20. killing wife's paramour, 19, 30, 47. defending one's house, 39-43. defense of property, 25-50. force that may be iised, 26-31. by use of spring guns, 25-31. by guard dogs, 31-33. 1014 INDEX. [THE FIGt'EES REFER TO THE PAGES. 1 SELF-DEFENSE— continued. in protecting property, right of innkeeper, 34-37. in protecting self and property against dogs, etc., 16, 17, 46, 47. in protecting property against trespassing animals, 48-50. by distress, 44, 45. excessive force in, 48-50. in preventing tlie taking of chattels, 54, 55. provocation, furor brevis, 19-22. self-preservation in time of danger, 23-25. SEQUESTRATION, in equity, explained, 865-867. practice in granting or removing the writ, 866-867. used with injunction, when, 866-867. SERVICE OF PROCESS, see Process. SET-OFF, claims acquired after suit brought, 922-923. SLANDER OF TITLE, actual damage must be shown, 178-180. essentials of the action for, 178, 179, 181, 182. malice must be shown, 181, 182. SPECIFIC PERFORMANCE, of contract to convey land, 306-309. what must be alleged, 318. proper parties, 318. purchase money paid in installments, 317, 318. oral contract for land enforced under part performance, 309-311. when not enforced, what relief granted, 311, 312. of award of arbitrators in regard to land, 314. of covenant for further assurance, 285. of contract to devise land, 315. of contract of husband when wife refuses to join, 308, 309. with compensation for defects, 313. when wife refuses to join, 308, 309. of negative covenants, 712-714. of contracts for service, 575-577. enforced by injunction, 710-712. when granted for chattels, 608, 609. SPLITTING ACCOUNTS, 673-676. SPRING GUNS, 25-31, STATUTE OF FRAUDS, when oral contract for land will be enforced, 309-311. when not enforced, what relief granted, 311, 312. STATUTE OF LIMITATIONS, as conferring title to chattels, 2. as to claims filed in creditors' bill, 772-775. when a mortgagor may redeem, 299, 300. when an action commenced so as to stop statute, 922-923, 925. STOPPAGE IN TRANSITU, 3-7. STREETS, owner of land covered by, may maintain trespass, 248. trespass not maintained by town for injury to, 247. STRIKES, action for strikes, boycotts, etc., 710. injunction to prevent interference by strikes, etc., 586-589. SUBPOENA, in equiy, 918-920, 926. SUMMARY PROCEEDINGS, in ejectment, 169-172. question of tenancy only at issue, 171. when title is involved, 171. INDEX. 1015 [THE FIGUKES HEFER TO THE PAGES.] SUMMARY PROCEEDINGS— continued. on official bonds, 646-648. to enforce payment of purchase money in judicial sales, 685-690. SUMMONS, compared with process at common law and In equity, 926-928. effect of issuing without seal, 941-942. necessary to commence action, except when publication made, 944. what is meant by service of, 928-931. see Process. SUPERSEDEAS, when writ may issue, 841. TELEGRAPH COMPANIES, liability for negligence in failing to deliver message, 403-405. who can maintain an action against, for negligence, 980. liability for sending libellous message, 420. TENANTS IN COMMON, action for waste by one against another, 206, ejectment by and against, 138. against a stranger, 163, 166. by one against another, 164-166. partition allowed, 727. contribution for mistake or defects in, 736-738. right of one improving the' common property, 739-741. with partial division by devisor, 732-734. of chattels, remedy of one tenant against another, 743-744. trespass q. c. f. by one tenant against another, when, 251. trespass or replevin by one tenant against another for taking crops. 252. trover by one tenant against another, 611. what constitutes an ouster by, 164-166. THEATRES AND SHOWS, liability to holder of ticket, 270. THREATS, what are actionable, 381, 382. TITLE, necessary to sustain trespass q. c. f., 242, 243. TORTS, arising out of contract, 321-325, 329, 331, 333-337, 353, 354. definitions of, 321, 322. injunction against irreparable injury to land, 261-265. liability of owner for injury done by animals, 625, 626. liability in tort, of caterer furnishing unwholesome food, 407, 408, 410. parties to actions on, where two or more liable, 978-980. revocation of license, action not in tort, 270. in selling dangerous commodities, 409, 410. waiving the contract and suing in tort, or vice versa, 323-329, 333- 337, 353, 354, 666-667. TREES, remedy in equity for cutting, 264. remedy for, when severed by tenant and by adverse holder, 190-193. severed and converted into a boat, etc., 192-195. TRESPASS, ab initio, 240-242. by entry of rightful owner, 61, 62. by person entering hotel, 35-37. committed through necessity, 23-25. in turning out of public road, 77-80. entering upon another's land to retake property, 50-53, 55-59. in evicting tenant at sufferance, 62-67. 1016 INDEX. [THE riGUEES BEFER TO THE PAGES. 1 TRESPASS— continued. injury to trespasser by guard dog, 31-33. by one in public road, 38. in retaking chattels, 39-41. liability for, against person and property, 48. liability of master for trespass by servant, 592-594. on land, what constitutes, 236-238. action on the case for, 258-260. preventing trespass, 26-31. molliter manus, 40-43. by spring guns, 25-31. by injunction when continuous or destructive, 234, 262-266. TRESPASS VI ET ARMIS, action of, de bonis asportatis, by bailor against bailee, 625. does not lie for reversioner, 624. force in taking not necessary, 622-623. what title and possession will sustain, 622-624. distinguished from case, 348, 349, 351-353, 382, 383, 394, 39.5. 618-620, 625. distinguished from trover, 609-611. form of writ, 917. for ejecting intruder from church pew, 71, 72. joined with trespass q. c. f., 349. lies when injury is direct result of force, 348, 349, 351-353. waiving the trespass and suing in case, 352, 353. when trespass and when case for injury to realty, 260, 261. who may maintain, 609-611, 614, 623, 624. TRESPASS QUARE CLAUSUM PREGIT, 236-258. against owner of animals, 254, 255. aiders and abettors liable in, 245. as an action to try title, 257, 258. by city or town against invader of market-house, 248. by city or town for injury to street, 247. by one cotenant against another, 251. by lessee for years, 252, 253. by lessee or purchaser of growing crops, 246. by owner of an easement, 246. by owner of servient estate against owner of easement, 249 by particular tenant, and case by remainderman, 258. by tenant against landlord, 250. by tenant at sufferance against owner of land, 62-67. by owner of the fee covered by a street, 248. damages in, 236-239. for entering private room of a woman, 385, 386. for mesne profits, 190-192. continuation of ejectment, 146-148, 192. form of, 130-131. Code practice in, 148. form of writ in, 917. judgment in, as an estoppel, 256, 257. matter of aggravation in, 237-239, 250. possession sufficient against a wrongdoer, 243-245. under the Code practice, 257, 258. what possession necessary, 242-245. what title will support, 242, 243. when entry lawful, 241, 242. TROVER, a disafllrmance of title, 600, 601. by one cotenant against another, 611. distinguished from detinue, 601. distinguished from trespass, 609-611. INDEX. [THE FIGDEES REFER TO THE PAGES.] 1017 TROVER— continued. effect of destruction of subject-matter, 601-603. for crops or trees severed by tenant or by adverse holder, 190-193. for the destruction of balled property, 612, 625. for house removed from owner's land, 195-196. form, purpose and essentials of, 355. form of writ in, 917. gist of the action, 614. judgment In as vesting title in defendant, 614-616. jurisdiction in, 617-618. measure of damages in, 616-617. relief afforded in, 609. return of property as affecting damages, 616-617. title and possession necessary, 609-611, 614-616. under common-law practice and under the Code, 330. waiving the tort in trover, 617-618. what amounts to a conversion, 612, 613. when trover and when case against a bailee, 612, 625. who may maintain the action, 609-611, 614-616. TRUSTS AND TRUSTEES, trustee buying at his own sale, 295, 296. when trustee may file a bill for advice, 716-720. TWILIGHT ZONE, of actions ex contractu and ex delicto, and also of "near beer," 324. VACCINATION, effect of compulsory laws, 392. VARIANCE, between writ and declaration, 911-915, 926. VENDOR AND PURCHASER, application of caveat emptor, 271, 272. different remedies of vendor, 315-318. fraud practiced on vendor, 705, 706. effect of covenant against incumbrances, 275, 276. measure of damages for breach of contract by purchaser, 300-304. by vendor, 304, 305, 306. proper parties to proceeding to enforce contract, 318. purchaser must protect himself by taking covenants, 271, 272. relation of parties similar to mortgagor and mortgagee, 316-318. remedy of purchaser under oral contract for land, 309-312. remedy of vendor when payment in installments, 317, 318. right to specific performance with compensation for defects, 313. summary proceedings in ejectment not applied, 170. VENUE, as affecting jurisdiction, 883. in local and transitory actions, 909-910. when insane defendant taken outside of county of domicile, 971-974. VOTING, interfering with right to vote, 485-489. W. WAGER OF LAW, allowed In debt, 678. In detinue, 360. WAIVER, of defective service, by appearance, 932-935. of objection to arrest, by appearance, 920-922. of process, by appearance, 924. of objection to the writ, by appearance, 915-916. of objection to jurisdiction, 875-877, 882, 883. T-018 INDEX. [THE FIGURES EEFER TO THE PAGES.] WARRANTY, action In tort or contract, 324, 325, 690-694. what constitutes, 694. WASTE, remedies for, 201. action for, by one cotenant against anotlier, 206. action on the case in nature of, hy reversioner, 253. by and against whom, action maintained, 204. equitable waste, 202, 208, 209. estrepement, 202. form of writ, 918. jurisdiction of equity in, 207. mandatory injunction in, 209. old action of, practice in, 203. privity of estate in, 204. remedy for, hy owner of contingent interest, 205. what is, at law, 201. WATERS AND WATERCOURSES, damages for overflowing land, 233-235. jurisdiction over acts committed on boundary river, 890. mill-pond as public nuisance, 219. obstructing and diverting natural streams, surface waters, etc., 83-87. obstruction of, how abated as a nuisance, 82. remedy for diverting or overflow, 260, 261. use and control of, common law and civil law rule, 83-87. WERBGILD, 367. WILLS, caveat, nature of and practice in, 720-723, 725. effect of caveat upon executor or administrator, 725, 726. effect of nonsuit in caveat, 720-721. form of judgment in caveat, 723, 724. issue of devisavit vel non, 723, 724. when two scripts are propounded, 722-723. parties to caveat proceedings, 720-722. construction of, in equity, when, 716-720. contract to devise enforced, 315. partial division of land hy devisor, 733, 734. probate of, 720-726. WRIT OP RIGHT, 120-123.